A different kind of legal question

[mikael_karlsson]

<p>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.<br /><br />Between 1 and 2, 1 is correct as you've written it.</p>

[david_gardner6]

<p>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.</p>

[photomark]

<blockquote>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.</blockquote>

 

<p>

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.

</p>

 

<p>Mikael's advice about seeking a second opinion a little higher up the org chart sounds like a good idea.</p>

[david_gardner6]

<blockquote>

<p>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</p>

 

</blockquote>

<p>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.</p>

<p>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.</p>

[craig_gillette]

<p>This is the NGA's policy page. They allow photography for personal use, and don't allow monopods and tripods.</p>

<p>http://www.nga.gov/ginfo/policies.shtm</p>

<p>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.</p>

<p>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. </p>

[david_gardner6]

<p>Hmmm. This again speaks to the "they can say whatever they want to" comment above.</p>

<p>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.</p>

<p>Put another way, do they have a legal right to restrict the use of a photograph of public property?</p>

<p>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.</p>

[mikael_karlsson]

<p>David:<br /><br />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.<br /><br />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.<br /><br />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.</p>

[craig_gillette]

<p>"Put another way, do they have a legal right to restrict the use of a photograph of public property?"</p>

<p>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." </p>

<p>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.</p>

<p>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.</p>

<p><strong>"2. </strong><strong>BACKGROUND</strong></p>

<p > </p>

<p >A special park use is an activity that takes place on park land or waters and meets the following criteria:</p>

<p > </p>

<p >· Provides a benefit to an individual, group, or organization, rather than the public at large, </p>

<p >· Requires written authorization and some degree of NPS management to protect park resources and the public interest,</p>

<p >· Is not prohibited by law or regulation,</p>

<p >· Is not initiated, sponsored, or conducted by the NPS,</p>

<p >· Is not managed under a concession contract, and</p>

<p >· Is not managed through a lease.</p>

<p > </p>

<p >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)).</p>

<p > </p>

<p >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. <strong> </strong></p>

<p > <br>

Whether a request to engage in a special park use is approved or denied, the Superintendent<strong>’</strong>s 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. " </p>

<p>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.</p>

<p><strong>"4. </strong><strong>POLICY GUIDANCE</strong></p>

<p > </p>

<p ><strong>General. </strong> The NPS should encourage special park uses that accomplish any or all of the following:</p>

<p > </p>

<ul type="disc">

<li >Support the mission of the NPS</li>

<li >Add to the public understanding and enjoyment of the park</li>

<li >Promote a sense of ownership and stewardship for the park and its resources</li>

<li >Enhance the protection of park resources and values;</li>

<li >Provide for an increased level of visitor safety.</li>

</ul>

<p > </p>

<p >The NPS will not issue special park use permits that:</p>

<p > </p>

<p >· Create an unacceptable impact on park resources or values (see <em>Management Policies 2006</em>, <a href="http://www.nps.gov/policy/mp/policies.html#_Toc157232614">section 1.4.7.1</a>), or</p>

<p >· Are contrary to the purposes for which the park was established, or</p>

<p >· Unreasonably disrupt the atmosphere of peace and tranquility of wilderness, natural, historic, or commemorative locations within the park, or</p>

<p >· Unreasonably interfere with interpretive programs, visitor activities, visitor services, or NPS administrative activities, or</p>

<p >· Substantially interfere with the operation of public facilities or the services of NPS concessioners or contractors, or</p>

<p >· Create an unsafe or unhealthy environment for other visitors or employees, or</p>

<p >· Result in conflict with other existing uses.</p>

<p > </p>

<p >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. </p>

<p > <br>

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." </p>

<p>Section 9 deals with First Amendment issues:<br /></p>

<p><strong>"General.</strong> 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)</p>

<p>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.)?</p>

<p>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. <br /></p>

<p> </p>

<p> </p>

[david_gardner6]

<p>Mikael,</p>

<p>Indeed, I think you're right.</p>

<p>Craig,</p>

<p>Thanks for the follow-up info. Interesting reading.</p>