A different kind of legal question

Discussion in 'Business of Photography' started by david_gardner|6, Apr 12, 2010.

  1. Most of the legal questions I see posted have to do with either copyright, or the right to shoot in public. This one is different.
    A few years back I was planning a trip to Washington DC and I wanted to shoot some shots I'd been jonesing for for a while, in one of the museums. I called to get information in advance since I wanted to shoot large format and therefore needed to use a tripod.
    The first thing that surprised me was that they asked me whether I intended to sell the photos. I was surprised because I had been told by a Park Ranger that any photo taken on or off federal land that is intended for public use is mine to do with as I please, including selling for a profit. This is how everybody can take pics of, say, El Capitan, and potentially make money from them if they're any good.
    Since this was one of the art museums I asked if they were afraid that I was going to photograph the art, but that wasn't the issue. They wanted to prevent me from selling images of the buildings, inside or out. And it's the out part that really surprised me. They claim to be able to control what is done with images of the building itself, including images from the sidewalk, the Mall, the street, you name it, as well as images shot inside the building.
    If anybody knows about the law in regard to this, I'd love to be informed.
     
  2. David
    As far as I know they can control the usage of the images (inside and out) of their building - the only exception is for "art" or if the building is part of a larger skyline.
    Dave
     
  3. If the material is visible from a place that the public has typical access to, then they really can't control the taking of those pictures. The copyright laws are specific as to the legality of taking pictures of buildings - the "public place" limitation permits the publication of pictures or other pictorial representations of buildings located in or visible from a public place. This limitation on copyright applies to architectural works - not to pictorial, graphic or sculptural works and its applicable to the exterior views.
    Since it's an art gallery, there may be some issues with how you use pictures of "works" visible from public places and certainly some items in the displays or collections inside may well be subject to restrictions from the copyright owner. It seems likely that there isn't settled law that I can tell on whether one can take pictures of a work and know definitively if it's an infringement or not. (Consider the angst recently in a thread about making a painting from a picture, etc.)
    Inside the "fence" even if there is no fence, they can control your activities. For example, there is a large white publicly owned house at 1600 Pennsylvania Ave. You can take pictures from outside but hopping the fence because it's spoiling your pictures is probably a really bad idea. There are areas around the Capitol where a permit is required to use a tripod, etc.
    "How" you use the pictures could also have some issues.
     
  4. If there are copyright issues with the art it's probably best to consider those separately—you can't really avoid the need for
    permission from the copyright holder if the work has not fallen into the public domain.

    Assuming that copyright is not the issue, once they have given you permission to photograph inside the building without
    forcing you into some contractual agreement, I'm at a loss to figure out how they could prevent you from using the images
    however you see fit. The ability for them to limit photography and limit a photograph's use after the fact are two completely
    different things. Clearly they can limit your actions while on their property, but I'd be curious to hear how they would intend
    to prevent you from profiting once you are no longer on the property. After all the neither the photograph nor the view belong
    to them and there don't appear to be any privacy concerns. What's left?
     
  5. Dave-
    Thanks for the feedback. Can you cite any precedent or statute to support that?
    Craig-
    This has been my understanding as well. They could by default control the large format photography by denying me a tripod permit (they did not, BTW, and in fact they were pleasant and helpful). Beyond that, I don't see how they can claim to control an image of the interior or exterior of a building that doesn't show any art.
    A partial exception would be the various sculpture gardens that are visible outside the buildings. Some of the sculpture kind of straddles the line between art and architecture.
    Mark-
    Again, that's my understanding too. I just wanted to get some feedback and verify what I thought was true.
    The irony that entails when an art museum wants to keep artists from creating art has not been lost on me, BTW.
     
  6. Several architects such as Frank Gehry have copyrighted the exterior design of their buildings (i.e. Disney Concert Hall in LA) in an attempt to control the depiction and usage of images of the building. I would assume that this would affect a photographer's ability to sell pictures of the building.
    <Chas>
     
  7. That's an interesting point. I would assume (and I may be wrong) that the building would have to be fairly unique and recognizable. I can see that possibly holding up in court for a Gehry building, since they're pretty recognizable. Fallingwater is pretty recognizable.
    I'm still not sure that I think this would stand up in court, however.
     
  8. Several architects such as Frank Gehry have copyrighted the exterior design of their buildings (i.e. Disney Concert Hall in LA) in an attempt to control the depiction and usage of images of the building​
    Architectural works after December 1, 1990 are protected by copyright—the architect doesn't have to copyright the exterior. Like other media, copyright is applied when the idea is realized in tangible form. However, the assumption that this affects the photographer's ability to sell pictures of the building is wrong—at least for exteriors. There is an exception when it comes to architectural works. Here's the relevant part of the law:
    § 120. Scope of exclusive rights in architectural works63
    (a) Pictorial Representations Permitted. — The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.
     
  9. People will claim a variety of things. The person you spoke to may not have been properly informed or the right person to ask. As you pointed out when it came to taking the pictures, they allowed the pictures and the tripod use as well.
     
  10. David, to clarify a point you brought up in response to Charles: Recognizability is not an element of copyright. It is relevant to trademark law (e.g., the Disney castle is a recognizable building that consumers immediately associate with the source of certain goods and services, so selling a photo of the Disney castle could violate Disney's trademark because consumers might infer that the photo is from Disney).
    But whether a work is subject to copyright protection has nothing to do with its recognizability. No one need know at a glance that your photos, for example, came from you, for you to enjoy exclusive right to reproduce and distribute the images.
     
  11. Ian,
    Thanks for that clarification. Agreed on the different between copyright and trademark.
    In such a scenario, assuming that a building was not trademark-able/recognizable, is a photograph considered a derivative work?
     
  12. Not of a building (or perhaps more accurately, an "architectural work") in the sense that you can take and distribute images of it. Although I can't put a finger on a reference quickly, it was part of the intent of the 1990 act to preserve the ability of the post card, calendar, souvenir, etc., "industry" to continue to take and market pictures of cities, skylines, etc. So in a general sense, a picture of a "building" would not be the kind of "derivative work" that the copyright owner had an exclusive right to make or authorize (or prohibit).
    FWIW, and although I can't say for sure on the other castles, the castle in Disneyland is not only a registered trademark (AFAIK), it's clearly on private property and not what I think one could argue "ordinarily visible from a public place." It's behind the berm.
     
  13. So if they're protecting the postcard/calendar industry (and I have no problem with this), does this also apply then to the fine art field?
    Agreed re: Disney. There were many reasons that Walt bought so much land in Florida, but among them was that almost everything in the resort is not visible from outside the resort. He did this more to "preserve the mystery" as it were, to generate a sense of excitement, but it also has the effect of making the parks unphotographable for any commercial use that isn't licensed. (And again, I have no problem with this. If a company goes to the trouble to work all of this out legally and then spends the money to make it happen, kudos to them. I'm questioning the folks who say that they don't have to go to those efforts.)
    Also, we've kind of strayed away from my original question, or part of it, as we've explored other avenues. I alluded to this originally, but in more detail...I visited Devil's Tower a few years back. A ranger was talking to me about the large format camera, and I asked her about selling the images I was capturing. Her response was "If it's public land that is meant to be accessed by the public, all the views are yours to use as you see fit." Makes sense to me. And admittedly, she might have a) been wrong, or b) been using verbal shorthand for a more complex answer. But if she was right, isn't the Smithsonian "public land meant to be accessed by the public"? And if she's wrong, can somebody point out how, or how what she said doesn't apply to the Smithsonian, or, for that matter, everything on the National Mall, like the Lincoln Memorial?
     
  14. No. They specifically meant to address the impact of both the commercial and private "souvenir" practice of taking (or distributing) pictures of "the city" and they did not apply the exception to other types of works.
    There are no restrictions on taking pictures of the National Mall area, the Smithsonian's, etc. There are some areas where tripods can be restricted, etc., much as you can't camp on the Mall, erect structures, etc.
    However, the situations change when you deal with interiors and "works" that aren't subject to the exceptions applied to architectural works. Once you get "inside," then it's also an area subject to the permission and control of the owner, not necessarily a "copyright" issue although an interior would not usually be "located in or ordinarily visible from a public place." Art galleries and museums may well have items on display that are subject to copyright or for cultural reasons and sensitivities, they ask that they not be photographed.
    The government or other institutions (like an individual) also can control the appearance of endorsing or promoting commercial businesses and products, the use of their identifying marks and logos, etc.
     
  15. Thanks again. We're getting closer to answering all my questions.
    an interior would not usually be "located in or ordinarily visible from a public place."
    This is one place that I think is still fuzzy. It seems pretty clear if it's, say, the Metropolitan Museum, since it's privately owned, but the Smithsonian is owned by me (and you) and we both pay for it with tax dollars, so it seems more like Yosemite than the Met. By virtue of being the Smithsonian, it's a public place, correct?
    Given that, assuming that I'm neither a) photographing their (our) art, nor b) using a tripod, what does the law say on selling an image I've captured?
     
  16. David:

    As far as editorial usage goes, sell away, or license rather. No releases needed in the US. No matter - pretty much - what you shoot. Doesn't even matter if it's a public or a private place as long as there's no trespassing. I've licensed loads of images made inside privately owned residences for book and text-book usage and releases were never requested. Mind you we're talking drug-houses, indoor crime scenes etc.

    With commercial usage (which has nothing to do with if the photographer gets paid by the way) releases are almost always requested by the clients.
     
  17. No. You don't "own" the Smithsonian, any more than you "own" the local fire station. You can't walk in and take pictures of the fire fighters in the shower and you don't get to take "your" fire engine for a spin. Suppose "you" reserve a gazebo for a picnic in a "public" park? Do you think because it's a public park somebody else can walk in and take over your party?
    Which is still a different issue than the interior of a building being subject to different copyright provisions. Exteriors (under the conditions in the law), there is no need for permission, public or private. An interior is subject to the control of the owner. And that can be a public agency. You could argue that you own 1/300,000,000th of it but no one will listen. Besides, the Smithsonian doesn't restrict interior pictures.
     
  18. So in a nutshell, what the ranger lady told me is just flat wrong, and I cannot take a pic in Yosemite and expect to be able to sell it? Or, to make the comparison more accurate, let's say that I've found a cave in Yosemite and I get an image there. Because this cave is an "interior" image, it's protected like the rotunda in the National gallery of Art, whereas an exterior (the Art building itself, or Half Dome) is freely usable?
     
  19. Here are a couple of primary sources. The first addresses National Park Service issues, including special uses, first amendment activities, filming and photography, etc. I'd expect the Smithsonian and other government agencies have similar documentation, policies and procedures. If you aren't clear on the various rotundas, like in the Capitol (contact the Architect of the Capitol for that one), the owners will be happy to explain the issues. The others deal with copyright, what can be copyrighted, what can't be, etc.
    http://home.nps.gov/applications/npspolicy/DOrders.cfm
    Start with Director's Order 53.
    http://www.copyright.gov/
    You might want to start with this if the FAQs, etc., aren't helpful: http://www.copyright.gov/title17/
     
  20. David:

    You can absolutely sell images from Yosemite etc with no releases of any kind as long as the usage is editorial. With very few exceptions you should be able to sell/license - again for editorial usage - images made where you have access.

    It sounds to me like you're looking for a one answer for all situations and it just doesn't work that way - just like Craig points out with his examples here above.

    Learn to distinguish between commercial and editorial usage of photos and I think all this might be a lot clearer for you. Very simplified commercial usage is when a photo is used to sell or promote a product or service. Editorial use is news, to illustrate (magazine articles, inside books etc) and more. Sale, as in the photographer getting paid for the usage, doesn't enter the discussion because it doesn't matter.
     
  21. Craig,
    That was very helpful, thanks.
    Here’s my current understanding. Assumptions are in parentheses.
    All photography on any federal land/facility requires a permit.
    It is up to the individual in charge of that land/facility, and/or his/her designees, to determine the qualification procedures and fees for such a permit.
    (Realistically, photographers shoot on federal land without permits all the time. However…)
    (They generally don’t become involved in selling their work through, say, galleries, and because of that they don’t show up on the radar.)
    Is that understanding reasonably correct?
    Beyond that, has anyone gone through this process? It reminds me of something I’m doing for my day job at the moment, writing training for a process that is scalable from very low to very high levels. The training, like the reading Craig pointed me to, seems to cover a similarly wide range, but also like the training seems to really be unofficially aimed at the higher levels, like permits for a filming crew, and less so at the lower levels, like a photographer with a tripod. Nonetheless, whether it’s really aimed at me or not, it seems like I need to do this to be able to offer fine art prints of subjects on Federal land. I’m wondering if anyone who has experience with the process can shed some light of the hassle and cost factors.
    Mikael,
    Agreed that this is a complex situation, and agreed that I’m trying to boil it done to some kind of essential answer. On the other hand, I’m not doing this to be perverse, but to get a solid understanding and prevent Mr. Fed from knocking on my door with a warrant. Additionally, I’d like to be able, next time I feel like shooting in the Gallery or any similar venue, to say “Actually, you can’t prevent me from selling my work,” if that is indeed true. Or at least to know that it’s true while keeping my mouth shut at the time.
    Re: commercial v. editorial use, I agree that this may be the crux of the matter. The problem I’m having here is that fine art seems to be neither. It is closer to commercial use; I’m not promoting a product, but I am indirectly promoting myself as a photographer. It’s clearly not editorial, as I understand the term in this context. There’s no news value involved, nor am I using it, say, to teach a concept.
    Feel free to guide me as long as you have the patience.
     
  22. Fine Art is typically seen as much closer to editorial than commercial if we're talking releases etc. Maybe one of the many people on here with a heck of a lot more knowledge of the law than I have can explain in greater detail.

    You do not need a permit to shoot on federal land. In most (all?) National Parks you need a permit if you're going to do a big set-up with lights, models etc. AFAIK it varies between NP's if you need a permit for a tripod or not. You certainly do not need a permit to photograph the exterior of federal buildings. I routinely photograph buildings like federal courts and when it's only exteriors I'm shooting I call the Marshal Service ahead of time to inform them "... that even though I don't need a permit I'm letting you know, out of courtesy, that I will be photographing the exterior of the building on such and such a date and at roughly this time." No issues anywhere so far.

    I think you can safely assume that you will not get any federal agency knocking on your door with a warrant for photographing anything that isn't classified. If someone approaches you in a gallery etc, is there really a need to tell them that you can sell your images if you want to? I'd just smile and nod at whatever they're saying and continue photographing. If they instruct me to stop photographing I'll politely ask for a supervisor and explain things to him/her. Personally I always call ahead and clear things with the media office, the security office, whatever is appropriate. I ask for an e-mail confirmation spelling out that it's OK for me to be there and photograph. That e-mail I can then show to anyone at the site telling me to bugger off.
     
  23. This thread has taken a funny turn and it seems like some information is getting mixed up in the process.

    First, lets clear up some things the commercial vs. editorial distinction. Regardless of how you define the terms (most people, for instance,
    would call selling fine art prints editorial work) the distinction is always made in reference to privacy. The concept of privacy has been gradually
    developed in the US and is reflected in various privacy torts. The one that generally comes into play for photographs is 'Appropriation of name
    or likeness.' This basically says that a person has a right to control how they are used in commercial settings like endorsements. I can't run add
    that says 'David Gardner prefers to smoke Camels' without your permission. By the same token I can't use a recognizable photo of you in an ad
    that implies the same. If, however, I get a photo of you smoking that is in some sense newsworthy, then I can run the photo as part of a story
    about it so long as it is not libelous. This use doesn't imply any sort of commercial endorsement and and it is protected by the 1st amendment.

    With that in mind, it makes no sense to require a release to use an image from Yosemite regardless of whether the use is editorial or
    commercial in nature. Half Dome does not have privacy rights. I can imagine a situation where one might use a photo that strongly implies the
    National Park Service endorses something it would prefer to distance itself from, but I think that's a rare case.

    Also, the commercial/editorial distinction is irrelevant when it comes to copyright. Just because you are Time magazine does not mean you can
    use my work without my permission in an editorial piece. The only wiggle room is in the concept of Fair Use. Although the commercial/editorial
    distinction does come into play with fair use when considering the factor of purpose and character of work, it is a different concept.

    Onto your assumptions:

    –All photography on any federal land/facility requires a permit

    This is not true in my experience. I've spent a lot of time shooting on public land and have licensed work shot without a permit back to the
    government to use with no problems whatsoever. Agencies like the National Park Service have a mission to preserve and protect their
    resources so they will use this to limit activity on park land. If you plan to do a large commercial shoot involving props, models, etc. then they
    do require a permit because you stand a chance of making a larger impact on the land than a typical visitor. The NPS has also been a little
    rough on filmmakers even when they don't need require special access and this has been a point of contention. The general rule I've always
    operated under is that I never need a permit on public land unless told otherwise, and then I expect a pretty good reason for limiting my
    activities more than the general public.

    —They generally don’t become involved in selling their work through, say, galleries, and because of that they don’t show up on the radar.

    Once you are no longer on public land, the government has no basis for knocking on your door. Your photographic expression is protected by
    the 1st amendment. So long as you are breaking no laws to get the photos (trespassing, revealing state secrets, etc) and the work does not
    involve somebody else's copyright, you should assume that you are free to use those photos. Exceptions as noted above like casting a false
    light, libel, appropriation etc. can trump your 1st amendment rights, but these are generally only for people.
     
  24. DO 53 is clear that the NPS will do as little as possible to interfere with the exercise of first amendment rights. Taking and distributing/publishing images is a protected 1st amendment activity. The NPS also has a responsibility to preserve and protect the various national park properties. So, if a "use" like using a tripod with steel feet on a marble floor damages the floor, they can restrict the use of steel footed tripods, etc. The properties are also to be used fairly by all of the visitors, etc., so an activity which might interfere with that use can be subjected to a permit process and reasonable limitations. Nor does the NPS have to give the photographer access or accommodations which exceed those provided to the regular visitor - but may, and again, this kind of use is subject to the permit process.
    One also needs to understand what can and can not be copyrighted. As pointed out, there are differences between the protections provided to an architectural work and other "works" which can be copyrighted. The interior of a building is not the interior of a cave. Different laws apply and there is no simple, single answer applicable to both. Pictorial, graphic and sculptural works may be on the grounds of a museum or may be incorporated in an architectural work. It's the practice of the federal government to not "copyright" government property so it's unlikely that a government museum type building would have exterior elements subject to their own copyright restrictions. But a museum may have in it's collections or displays items which are subject to copyright controls. So again, there may well be legitimate restrictions on photo taking in museum collections.
    The Library of Congress and Smithsonian will be happy to tell you what items, if any, in their collections, is subject to copyright controls.
    The government, like an individual can control commercial use of it's "image" such that one can't suggest endorsement or approval by the government of businesses, goods and services unless they are in fact endorsed, contracted, licensed, etc., by the government. The government agencies, as stewards of the properties or in the normal course of operations can apply reasonable controls and restrictions to allow for the running of the property, etc. They don't have to let you in after hours, they don't have to move people out of your way, the Architect of the Capitol and Capitol Police can enforce rules regarding the taking of pictures in various parts of the Capitol building and grounds. So you can take pictures in the rotunda but not the House or Senate "galleries" (and some of the other spaces). They can restrict use of tripods, of flashes, etc.
    But since there are issues of first amendment expression, copyright, property ownership, "publicity" and "privacy," there isn't necessarily one simple easy answer that says you can always photograph and distribute the results to your heart's content on federal property.
     
  25. Thanks again for the thoughtful replies.
    For a moment I'm going to get very specific, to try to get at what I was originally asking. To be clearer, I'll posit a few things that I will ask responders to read, all concerning the original situation, to keep us from getting away from the original situation for the moment:
    1. I had contacted the National Gallery of Art to ask permission to use a tripod inside the Gallery. (As an aside, they were very open and helpful, and gave me permission. For my part, I agreed to visit during a weekday when there were fewer visitors.)
    2. Their response was that it would be little problem to get a tripod use permit...but they asked that I affirm that I would never try to sell images that I captured.
    3. I never tried to photograph the art, and made sure they understood this. They were very clear that it wasn't only the art, but photographs of the building itself that they wanted to control. Nor was I revealing any "State secrets" :)
    4. There was never a problem with them feeling that I might be out to destroy the building. They did ask about the tripod feet, which I cheerfully told them were plastic.
    So, with those in mind, I see two broad categories of possible responses toward their assertion that I could only be allowed to shoot inside if I agreed to never sell the images. Feel free to have at these:
    1. There's no reasonable position for them denying me the ability to sell a legally obtained photo. As someone said upstream, they can say anything they like, but once I have the picture I can sell it in anyway that I could legally sell any other legally obtained photo.
    2. They can deny me the ability to sell the photo any time they wish. It's their building and they can do with as they wish.
    So between 1 and 2 which comes closer to the truth, and why?
     
  26. The National Gallery of Art is wrong to ask you to affirm that you would never try to sell (or license for that matter) the images you capture(d) there. If any art pieces are in the images then that might possibly be a different matter (for commercial use) but I don't think so really. How high up the ladder is the person that gave you this information at NGA? I come across misunderstandings and misinformation quite often at agencies and in 99 cases out of 100 going one level up in the hierarchy takes care of the issue.

    Between 1 and 2, 1 is correct as you've written it.
     
  27. Thanks for the info. This has all been a good discussion (from my standpoint, at least) and I've learned things, but that's really the question I was trying to get answered. And, I think your advice about going up the chain of command is good advice.
     
  28. There's no reasonable position for them denying me the ability to sell a legally obtained photo. As someone said upstream, they can say anything they like, but once I have the picture I can sell it in anyway that I could legally sell any other legally obtained photo.​
    I don't know much about contract law, but if your access is contingent on you agreeing not to use the images, then it begins to look and feel like you have entered into a verbal contract with them. If this is true, then I think it complicates things legally (but again, I'm over my head here). From an ethical point of view, this simplifies things: copyright, privacy and all those other concerns are irrelevant if you've agreed not to use the photos.
    Mikael's advice about seeking a second opinion a little higher up the org chart sounds like a good idea.
     
  29. if your access is contingent on you agreeing not to use the images, then it begins to look and feel like you have entered into a verbal contract with them​
    Yeah, I think you're right.In one sense that's OK in that that visit was an early round of large format use, and I was still in the middle of my learning curve. Most of those images weren't so great.
    What got me thinking about this is that I was in there with a DSLR last week. No tripod so no permission necessary, but I started wondering if there was any way what they told me was true.
     
  30. This is the NGA's policy page. They allow photography for personal use, and don't allow monopods and tripods.
    http://www.nga.gov/ginfo/policies.shtm
    Since you were able to coordinate use of a tripod, I'd think it might be possible to arrange for non-personal use, which would probably involve publication/distribution, etc. My guess would be that the policy statement covers the general requirements. If one were to want to develop a publication, etc., you might have to make arrangements as to the specific elements of the project so you didn't infringe on the any newer works copyrights or other rights issues if material is on loan, etc. Also "publication" quality imaging might often require restricting access to get clear shooting, more elaborate lighting measures, etc., all of which could inhibit the regular use of that area, which are the kinds of things that tend to lead to needing a permit.
    So, even if the subject matter isn't subject to copyright, there may still be legitimate reasons for the agency involved to impose restrictions on the activities.
     
  31. Hmmm. This again speaks to the "they can say whatever they want to" comment above.
    For the moment, again, let's unravel all the complexity. Leave aside the idea of inadvertently capturing a work of art in the image, needing to clear the hall, set up lights, all of that. Those points do serve to illuminate specific instances, but they muddy the waters regarding the overall concept. As a general concept, what is the difference between taking a photograph of Half Dome and selling it, and taking a photograph of a column in the NGA and selling that? Both are Federal, public property. Both are managed by elements of the government.
    Put another way, do they have a legal right to restrict the use of a photograph of public property?
    I suspect that the answer here may be something like "The primary purpose of the NGA is to allow viewers to observe art, while one of the primary purposes of Yosemite is to inspire artists to create art." While that may be the answer, I'm not certain it's a valid answer.
     
  32. David:

    It is really starting to sound like posing this question to an experienced attorney that works with IP and Copyright law might be a good idea. Try to find a local Attorneys For the Arts - they're often willing to help out with things like this for a much lower fee than what a consult with an attorney normally would set you back.

    We all here on the forum can weigh in with our experiences, knowledge and (at least sometimes) guesses on the topic but for a definite answer regarding legal matters seeking help from a qualified attorney would be a good thing to do. There are certainly experienced attorneys participating in the forums but I doubt any of them would consider what they give here "real" legal advice.

    Having said that, as long as you haven't committed any trespassing etc in the making of the photographs I don't see how they could restrict future usage unless such a restriction is in the agreement you make with them to gain special access, if such an agreement indeed is made and (like you write above) copyrighted items are not in the photos.
     
  33. "Put another way, do they have a legal right to restrict the use of a photograph of public property?"
    Yes. Certainly as a property owner (or as a representative and responsible to the public as a whole), a government agency has the right to control certain activities on the property. The NPS lets you take and sell pictures of Half Dome (generally speaking). The NGA says you can only take pictures for personal use. You can't even take pictures while on the White House tours but they can and do allow media coverage of White House events. All that is completely dependent on all of the specifics of the picture and the circumstances surrounding the taking of the picture. When one looks to all of the specifics, the answer may well be "No."
    But your question is perhaps more accurately if the NGA can control your activities and restrict the uses of the picture in ways that are seemingly different from the way the NPS (for example) does.
    Any agency is going to have similar responsibilities to the public. So taking the NPS D.O. 53 as an example, here are some of the pertinent sections. This is the way the NPS has documented this issue (at a fairly high level). One could expect that other agencies will have similar policy documentation specific to their own agency. I would expect there will be specific and maybe substantial differences from agency to agency but they will tree back up to the Constitution and the legislative authorities establishing the particular agency.
    "2. BACKGROUND
    A special park use is an activity that takes place on park land or waters and meets the following criteria:
    · Provides a benefit to an individual, group, or organization, rather than the public at large,
    · Requires written authorization and some degree of NPS management to protect park resources and the public interest,
    · Is not prohibited by law or regulation,
    · Is not initiated, sponsored, or conducted by the NPS,
    · Is not managed under a concession contract, and
    · Is not managed through a lease.
    A special park use does not include any activity managed under the Concessions Management Improvement Act of 1998 (16 U.S.C. § 5951), or any leasing activity managed under the National Historic Preservation Act (16 U.S.C. § 470h-3) or Section 802 of the National Parks Omnibus Management Act of 1998 (16 U.S.C. § 1a-2(k)).
    The Superintendent of each park unit is responsible for decisions to approve or deny requests to engage in special park uses at that particular park. This is an important responsibility. Superintendents should consult DO #75A Civic Engagement and Public Participation for guidance about notifying the public about permit fees or other special use park issues. Local decisions regarding special park uses may have Servicewide implications and set precedents that affect management of other parks. The Superintendent should consult with the regional or Washington Office special park use program manager whenever a decision on a requested use may have ramifications beyond the individual park unit.

    Whether a request to engage in a special park use is approved or denied, the Superintendents decision must be based on consideration of relevant factors related to the request. The decision document should articulate a rational connection between the facts and the final decision. The decision should conform to NPS legal mandates, Servicewide policies, consider effects on Servicewide programs, be consistent with decisions made both at the individual park and at parks Servicewide, and be thoroughly documented in an administrative record. "
    Your taking pictures to sell could be seen as providing a benefit to you and not the public at large. This isn't to say this is the NGA's position or that they consider everything the same way the NPS does but it is a sampling of the considerations. Section 3, which follows references the various legal authorities which establish the legal authority for the NPS to make their decisions. Then Section 4 is the "guidance" and other agencies will have their own guidance, much like they will have their own sets of laws establishing the agency and directing their operations.
    "4. POLICY GUIDANCE
    General.
    The NPS should encourage special park uses that accomplish any or all of the following:
    • Support the mission of the NPS
    • Add to the public understanding and enjoyment of the park
    • Promote a sense of ownership and stewardship for the park and its resources
    • Enhance the protection of park resources and values;
    • Provide for an increased level of visitor safety.
    The NPS will not issue special park use permits that:
    · Create an unacceptable impact on park resources or values (see Management Policies 2006, section 1.4.7.1), or
    · Are contrary to the purposes for which the park was established, or
    · Unreasonably disrupt the atmosphere of peace and tranquility of wilderness, natural, historic, or commemorative locations within the park, or
    · Unreasonably interfere with interpretive programs, visitor activities, visitor services, or NPS administrative activities, or
    · Substantially interfere with the operation of public facilities or the services of NPS concessioners or contractors, or
    · Create an unsafe or unhealthy environment for other visitors or employees, or
    · Result in conflict with other existing uses.
    The Superintendent may only approve a request to engage in a special park use, or any renewal of an existing use, if the use does not trigger any of the criteria above. Existing uses that trigger any of the above criteria which can not be mitigated to an acceptable limit through permit terms and conditions must be phased out.

    The NPS will ensure that the special park use permit for an existing or proposed use based on a Constitutional or statutory right, or property ownership includes terms and conditions that avoid triggering the above criteria by mitigating the impacts."
    Section 9 deals with First Amendment issues:
    "General. Freedom of speech, the press, religion, and assembly are rights, not privileges; however, the courts have recognized that activities associated with the exercise of these rights may be reasonably regulated to protect legitimate government interests. Therefore, to protect park resources and values, and to protect visitor safety, the NPS may reasonably regulate certain aspects of First Amendment activities, such as the time when, the place where, and the manner in which the activity is conducted. Note that it is the conduct associated with the exercise of these rights that is regulated, and never the content of the message." (Excerpt from Section 9)
    So it will come down to the NGA having the legal authority to control your taking pictures on their property and can they place legitimate restrictions on the uses of the pictures as an aspect of allowing you access and to take pictures at all? Is this a reasonable regulation that protects legitimate government interests (and perhaps the interests of others, like copyright holders, etc.)?
    Since any agency, location and picture may have a variety of distinctive circumstances, the general answer to your question is almost certainly, yes. But the circumstances will govern any specific situation. Is the NGA reasonable? Maybe? Maybe not. "Proving" that may be expensive.
     
  34. Mikael,
    Indeed, I think you're right.
    Craig,
    Thanks for the follow-up info. Interesting reading.
     

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