With the advent of a copiously illustrated worldwide web, ‘publication’ has changed for ever. The legal definition of publication was always ready for this, because it never meant ‘going to press’. You published something if you displayed it your shop window or pinned a single notice on a supermarket advertising board. Publishing was, and is, no more than the act of making words, images or any other information public.

The present photographic restrictions on many heritage sites and attractions (whether private, National Trust, English Heritage, Historic Scotland or independent organisations such as the Zoological Society of London, London Underground) do not appear to be there to reduce security risk, improve amenity, protect patrimony or increase direct revenue. They seem to be enforced for perverse reasons. One of these is an institutional fear of losing control. Another is jealousy or indignation that anyone should ‘profit’ through creating a valuable work.

Both these reasons, which would no doubt be denied, can be addressed by introducing annual editorial release permits for which photographers, writers, artists, website creators, or film-makers could apply.

A reasonable fee for such a permit would be as much as a family annual membership, maybe double that – in the order of £100. Today, the fees paid for non-commercial uses of images (newspapers, magazines, websites, TV flashups, textbooks, guide books etc) are generally modest. A photographer might cover the expenses of visiting a site after three or four sales, and it might take a year for achieve that. In many cases no fees at all are paid for the use of images, the fee being based entirely on the wordage provided by a writer-photographer.

Such a permit has the benefit that it would be issued to an individual, therefore known and database logged by the organisation. That individual would also have to agree to the conditions of the permit, answering the issue of institutional control. It would also be possible, without removing the creative artist’s ability to subsist from or subsidise their creative work, to remove the objection to ‘profit’ being made.

Here’s how – not in legal language, and possibly not comprehensive enough:

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This Permit in return for the fee paid, grants the Applicant the right to publish or licence for publication, with or without valuable consideration, works portraying the property of the Grantor, created between (start date) and (expiry date). The works may be in any visual medium, writing, audio, or data recording.

No use of the works for advertising, product endorsement, company or product publicity, packaging, or for the creation of products based on the work itself is permitted. No property or model release is granted by the issue of this Permit.

No privileges are given to the Applicant beyond the normal terms and conditions of entry to property. Restrictions on the use of tripods, easels, flash or other lighting must be adhered to. Restrictions on video filming, photography of the interiors or contents or properties, access to closed areas may apply. The Applicant agrees to comply with the requests of management or staff.

All work released must include title, caption, credit, byline, metadata or other authorship and copyright information. This must include the acknowledgment “By kind permission of (the Grantor)”.

The Applicant agrees to provide copies of any such works to the Grantor, on request, for internal and Grantor’s own publication and promotional uses without financial consideration. The Applicant agrees to the Grantor licencing such works to Third Parties subject to a percentage commission or remit of fees, to be agreed prior to any such licence. The Grantor agrees to identify the Author under the terms of the Copyright, Designs and Patents Act 1988.

Copyright and Derivative Work: the Grantor reserves copyright in all artefacts, paintings, sculptures, statues, ornaments, designs, architecture, planting, landscaping at properties. The Permit does not authorise the reproduction (direct copying) of art or objects on display. The Permit allows recording of items in the setting or context only, as a Derivative Work incorporating any such items.

The Applicant must not bring the Grantor into disrepute, through actions or works, or permit the use of works in a defamatory manner. The Applicant agrees to abide by any decisions made by the Grantor relating to works produced under the terms of this Permit, which may be revoked without refund of payment made if the terms and conditions are broken by the Applicant.

Specific clause for video: the apparatus used must be operated by a single invididual. Permits for film crews, news teams, etc are separately negotiable.

Specific clause for writers and journalists: the Permit allows paraphrasing of guide books, leaflets, information signs, labels and interpretation material without further attribution. Where text is quoted directly it must be attributed.

Specific clause for artists: restrictions on the use of easels apply as for tripods. Artists are permitted to make photographic records to aid later work, and to use guide books, leaflets etc as reference.

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A permit like this works better than ad hoc photography permits. In the Czech Republic, it is very convenient to buy a lapel sticker pass which authorises your camera in museums and heritage sites – but the conditions applying are not made clear. The same goes for many churches where tripods are allowed for a small fee. The myth of Machu Picchu – or the reality of it – with $300 permits demanded of anyone found entering with a lens longer than 200mm, and $200 for tripod use, is only likely to spread to other heritage sites.

It is not just the ignorance of photographic reality which annoys the visiting freelance, it’s the assumptions made about the rewards for everyday travel photography. With fees typically around $100 per usage in most magazines and guides, and agencies taking half that, paying a $300 ‘fine’ because your lens happens to be marked 200mm whether you plan to sell your pictures or not really hurts!

There is a secondary issue to this. Technically, publication is publication whether for reward or not. Anyone who puts an image of a restricted or private property on Flickr, Facebook or their own website is publishing it. Nor does publication with a fee imply that photography is commercial; fees are often paid purely on artistic merit. Prizes and awards are given on the same basis. Many pictures of a certain place or property are not chosen for use because they show that subject. They are used because they show a certain type of subject, such as a landscape or architecture. The photographer does not earn the fee, the prize or other recognition because they managed to get a shot of X – there are probably several thousand shots of X available, including hundreds in the (commercial) library run by the owners of X.

The semi-pro freelance or the amateur contest entrant are both successful because the image is different, special, perhaps unique – the conditions, the weather, the time, the way people are placed in a scene.

For the professional shooting library stock, the image may sell just because of what it shows, and not the merits of the photography.

I suggest that if a permit was made available, it would be taken up by a relatively small group of professional and semi-pro stock shooters (numbered in tens or hundreds in the UK). A few dedicated amateurs who exhibit work, sell prints, and enter contests might fork out as well. Visiting photographers from abroad might well pay for it. I don’t think any organisation issuing such a permit would be overwhelmed by thousands of photographers, artists, camcorder users or writers.

Finally, remember that some restrictions have nothing to do with photography. Many years ago visiting Cragside, the National Trust property in Northumberland, we were asked to leave our bags at the entrance. The cameras could go in (no commercial photography or tripods allowed) but the bags were too large. Why? They had suffered thefts. People with large bags (camera or shoulder) had walked out with objects. That kind of restriction would be unaffected by any permit!

- DK