Local Zoo Wants Use of My Photos

GoofBckt

I took some shots recently at our local zoo and posted them in a gallery on my website just to share, however, I always set up pricing just in case someone were to want to purchase one (which never happens). I was contacted by the marketing director at the zoo and told that if I am going to display and attempt to "sell" my zoo photos then I need to sign a "cooperative photography agreement" and send them 2 CD's of my zoo photos allowing them use for marketing with photo credit.
Apparently, some zoos have a sort of "copyright" on their animals, however I saw nothing posted anywhere about this while I was visiting.
I suppose this could be mutually beneficial, but what would you all do in this situation? Sign the agreement and hand over your photos and just HOPE they use one with photo credits, or take your gallery down? I'm in a quandary and part of it is just stubbornness on my part because I hate anyone trying to tell me what I can or can't do with my own photos. LOL This was all news to me. :huh
P.S. Since they are a non-profit entity, I would understandably forfeit any financial gain from them on this venture, however I would still be able to use my own photos for anything I saw fit by signing the agreement. I certainly don't mind supporting any cause relating to animals.

daylightimages

Just my two cents, and others may disagree with me...

I'd take the zoo up on their offer, provided their document that you sign specifically only allows them to use the photos for marketing and you otherwise retain all rights to your images. The fact that they'll give you a photo credit (see if they'll give you your name and website) makes this a win-win. You get widespread publicity for pretty much free and you get some pretty cool animal photos to do with as you want. Sign the agreement, and as you're shaking hands with them let them know that if they need any other photography you'd be glad to help them out -- this might get you access to "behind the scenes" or up-close-and-personal stuff you can market elsewhere.

There is probably some sort of "rules of conduct" document posted somewhere near the zoo's ticket booth that restricts commercial photography -- the fact that they'd let you market your photos unrestricted is a pretty big win for you.

As I said, others may disagree with me.

Sam

Hi,

I don't live too far from you so I would be interested in more details. Where is the zoo? Can you post a link to the agreement they want you to sign?
I think I would consider (after seeing the agreement) responding to their e-mail with something like:

"When I visited your zoo I did not see anything with regard to photography
graphy, and when I visited your website I didn't see anything that addresses photography. Can you provide some clarity on this?"

Also are they trying stop you from displaying / posting your images or selling them?

Now if I have a soft spot for a particular cause / charity and want to help that organization that's one thing, but there is no way they are going to force me to hand over money or image rights to them. Just because they are a nonprofit organization doesn't mean all that much to me. There are many types of nonprofits. Is the manager who contacted you working for free? Are they letting people in for free?

The government is a nonprofit, the king of nonprofits! I have no plans whatsoever to work for them for free. Well ok I, you, we do work for them for free, two to 6 months out of every year, but I am not going to voluntarily give them any more.

I am really interested in the selling versus posting of images, and how they intend on enforcing this. Are they worried they will lose a postcard sale?

Sam

GoofBckt

Well, one other photog that I know said exactly what daylightimages posted but then I had more of a reaction like you did, Sam. I will see if I can find a link to their "agreement" and post it. It really doesn't say much, IMHO.

Thanks for the replies guys, I appreciate it.

Sam wrote:

Hi,

I don't live too far from you so I would be interested in more details. Where is the zoo? Can you post a link to the agreement they want you to sign?
I think I would consider (after seeing the agreement) responding to their e-mail with something like:

"When I visited your zoo I did not see anything with regard to photography
graphy, and when I visited your website I didn't see anything that addresses photography. Can you provide some clarity on this?"

Also are they trying stop you from displaying / posting your images or selling them?

Now if I have a soft spot for a particular cause / charity and want to help that organization that's one thing, but there is no way they are going to force me to hand over money or image rights to them. Just because they are a nonprofit organization doesn't mean all that much to me. There are many types of nonprofits. Is the manager who contacted you working for free? Are they letting people in for free?

The government is a nonprofit, the king of nonprofits! I have no plans whatsoever to work for them for free. Well ok I, you, we do work for them for free, two to 6 months out of every year, but I am not going to voluntarily give them any more.

I am really interested in the selling versus posting of images, and how they intend on enforcing this. Are they worried they will lose a postcard sale?

Sam

daylightimages

Putting two and two together (your website and a Google search), I'm going to guess that it's the Santa Barbara Zoological Gardens. On their website it says:

"We encourage you to take photos and video for your own personal use. Commercial photography is allowed, but only with prior written permission. Please contact the marketing department for more information, or review our location filming policy.We may photograph visitors from time to time for promotional and educational purposes: entry to the Zoo grants permission for us to use these images." (The links probably don't work in this cut-and-paste job).

Going to the filming policy we find:

"The Santa Barbara Zoo offers the opportunity to use the Zoo facilities and images of its animals for advertising, film and video productions, artistic renderings, books, consumer products and stock photography. As a nonprofit corporation, the Santa Barbara Zoo relies on monies for efforts such as these to continue its mission of wildlife conservation and education as well as for animal enrichment and exhibit improvements."

That means your only options may be to agree with their terms (which I don't find unreasonable in this case as long as the agreement says "for marketing purposes only" and gives you a credit line) or take the "buy" button off that gallery.

I often encounter this type of policy at various museums.

GoofBckt

Wow, thanks for finding that! Obviously, I never read their website. I just went to the zoo one day for fun, came home and posted some pictures. It is my understanding that unless I sign their agreement, I cannot display OR sell the photos, so I don't think removing the buy button would suffice. I'm so glad you guys are out there for me to bounce things off of. I'm most likely just going to go ahead and sign and send. It's not THAT big a deal, I just wanted some other insights. You're awesome!

daylightimages wrote:

Putting two and two together (your website and a Google search), I'm going to guess that it's the Santa Barbara Zoological Gardens. On their website it says:

"We encourage you to take photos and video for your own personal use. Commercial photography is allowed, but only with prior written permission. Please contact the marketing department for more information, or review our location filming policy.We may photograph visitors from time to time for promotional and educational purposes: entry to the Zoo grants permission for us to use these images." (The links probably don't work in this cut-and-paste job).

Going to the filming policy we find:

"The Santa Barbara Zoo offers the opportunity to use the Zoo facilities and images of its animals for advertising, film and video productions, artistic renderings, books, consumer products and stock photography. As a nonprofit corporation, the Santa Barbara Zoo relies on monies for efforts such as these to continue its mission of wildlife conservation and education as well as for animal enrichment and exhibit improvements."

That means your only options may be to agree with their terms (which I don't find unreasonable in this case as long as the agreement says "for marketing purposes only" and gives you a credit line) or take the "buy" button off that gallery.

I often encounter this type of policy at various museums.

daylightimages

Those of us who photograph trains for a hobby in the post-9/11 world have had to become educated in where we can and cannot take photos, because there's always some security guard or cop who says, "You can't take pictures of trains." Then they start mumbling stuff about Homeland Security and terrorism. Railroad photographers have had to stand our ground when we know we're right, and the first part of knowing when you're right is knowing if you are someplace where photography is legal. (That's just some background; fortunately the cop encounters have become fewer and less volatile as more police forces are learning that photography is not a crime).

Here's the way I see this situation (note: I am not a lawyer, nor have I ever played one on television). Non-profit does not mean public domain. This is not a government-funded zoo, it is private. Thus, they get to set the rules while you are on their grounds (whether you've paid to be there or not). If they say no pictures, then no pictures. If they say pictures with conditions, you need to abide by those conditions. The owner of the property sets the rules.

Major caveat -- in most state constitutions, there is a definition of what is public space. There is no question you have the right to take photos from public space. However, in New Jersey (where I live) when the commuter railroads tried to prohibit photography one of their stumbling blocks was the definition that public space (in New Jersey) includes railroad and bus stations (as well as most parking lots and other locations near the railroad). It is possible that the California constitution could include zoos and theme parks as public space (although the Disney parks have similar conditions for photography as the zoo in question, so it's unlikely they are).

Since everyone uses the Bert Krages "Photographer's Right" as a guideline, I'll quote from there:

"Property owners may legally prohibit photography on their premises but have no right to prohibit others from photographing their property from other locations. Whether you need permission from property owners to take photographs while on their premises depends on the circumstances. In most places, you may reasonably assume that taking photographs is allowed and that you do not need explicit permission. However, this is a judgment call and you should request permission when the circumstances suggest that the owner is likely to object. In any case, when a property owner tells you not to take photographs while on the premises, you are legally obligated to honor the request."

Major caveat #2 -- if their policy wasn't prominently posted or printed on the ticket you received, then you didn't get prior notice. Thus, there is little they can do about the photos you already have. The question now becomes do you want to alienate them and not be allowed back. Also, I'd be very hesitant to add new photos from the zoo to the website, as you have now been informed of the policy.

Here's another sticking point. No one has gotten a real good legal handle yet on if posting photos on the internet is "publishing" or "sharing." If you aren't doing something for commercial gain, then my guess (remember my earlier lawyer disclaimer) is it would be considered sharing and fall under personal use. But if it appears on a website that sells stuff or otherwise solicits business, even if those particular photos are not for sale, then it's commercial and that's a whole 'nuther story.

If you are going to be on their property, you play by their rules. I don't see what's so complicated about that.

daylightimages

Glort wrote:

Depending if you think it worthwhile or not, I'd be checking out if their policy actually has any legal foundation. Just because they say something does not automatically make it legal.

See my post above.

Glort wrote:

And if you don't sign and keep showing the pics, what are they going to do. sue you?
That would go down great in the media wouldn't it?
" Zoo sues Visitor for taking pics of the animals and putting them on their personal website".

There's commerce being conducted on website. That moves it from the realm of personal to commercial.

Glort wrote:

In any event, I'd be buggered if I would be just handing over the images.
I'd be going back saying that in exchange for allowing them to use the pics, I'd be wanting a free unlimited family pass for the next 10 years so I could take some more pics for them.

Actually, they did offer her something in return.

It's all going to boil down to does the zoo advise photographers of the limitations on commercial photography and/or do you really want to get on the bad side of a place where you enjoy shooting.

Sam

Steve,

Thanks for a most thorough post. You have addressed this but I wonder if the photo policy is clearly posted at the entrance. Also when they talk about commercial photography they are really addressing a larger production with a crew and using the zoo as a backdrop as opposed to simply walking around with a camera taking animal photos.

By what I have read terms costs / etc for what they consider "commercial photography" is negotiable. I didn't see any set policy of providing the zoo with images. I tend to get cranky when a venue / business / etc wants to have total rights to images taken by me or someone else without any consideration.

I would absolutely interpret posting of your images on your website to be personal use. Selling I think could / would fall under commercial purpose.

I am going to do a little more research and will get back to you on this.

Sam

daylightimages

Sam wrote:

By what I have read terms costs / etc for what they consider "commercial photography" is negotiable. I didn't see any set policy of providing the zoo with images. I tend to get cranky when a venue / business / etc wants to have total rights to images taken by me or someone else without any consideration.

I would absolutely interpret posting of your images on your website to be personal use. Selling I think could / would fall under commercial purpose.

Sam

Not trying to be disagreeable here, Sam -- this is actually a pretty good discussion. The zoo didn't say they wanted total rights -- just the rights to use the images for marketing purposes. And the consideration is they are allowing Carrie to sell images on her website. Try striking a similar deal with Disney or NASCAR -- it ain't gonna happen.

The fact that Carrie's website conducts business moves it from a "personal" site to a commerce/commercial site, and the fact that images are for sale makes those photos "commercial" -- it doesn't matter if it was a single camera or an entire crew; it's whether they're for sale or not that makes a photo/photo shoot commercial vs. personal.

Keep on digging. I'd like to hear what you find out.

Angelo

daylightimages wrote:

The fact that Carrie's website conducts business moves it from a "personal" site to a commerce/commercial site, and the fact that images are for sale makes those photos "commercial" --

Sorry - taking your comment out of context a bit but... you couldn't be more wrong.

"Commercial" refers to a photographer's intent to sell images to a third party for advertising / marketing purposes with inferred rights to use those images.

Selling prints does not meet that standard.

There is plenty of information on this subject in the sticky thread at the top of the MYOB forum, titled: Photographer's Resources.

daylightimages

Angelo wrote:

Sorry - taking your comment out of context a bit but... you couldn't be more wrong.

"Commercial" refers to a photographer's intent to sell images to a third party for advertising / marketing purposes with inferred rights to use those images.

Selling prints does not meet that standard.

There is plenty of information on this subject in the sticky thread at the top of the MYOB forum, titled: Photographer's Resources.

Now that I think about it , you're probably right.

Okay, strike that part of the argument!

Thanks, Angelo.

Sam

Forget everything I wrote!

I just spoke with John Hays at the zoo, and he seemed very reasonable. He is forwarding me the exact agreement, but it is more of a mutually beneficial agreement than a rights grab, (something that is being tried more and more).

Basically the zoo is very photographer friendly. What they ask for is the right to use your / our images for the zoo's benefit. Advertizing, web, gift shop products. Not for resale to third parties.

What they offer is to grant / allow / provide release so that the photographer can sell, license, use the images for commercial purposes. They are also very willing to give photo credit.

Bottom line they get your images to use for the benefit of the zoo. You get what ever rights you need to use your images commercially. The only caveat is they don't want the image use to be detrimental to the zoo's image.

I can say if I am ever in the area I will visit and sign the agreement.

Sam

daylightimages

Sam wrote:

Forget everything I wrote!

I just spoke with John Hays at the zoo, and he seemed very reasonable. He is forwarding me the exact agreement, but it is more of a mutually beneficial agreement than a rights grab.
Sam

That's the way I interpreted it originally from Carrie's first post, and was the basis for my first response. I didn't see any evidence of it being a rights grab. It seemed like a very simple mutually beneficial trade.

Carrie's initial post said, "I was contacted by the marketing director at the zoo and told that if I am going to display and attempt to "sell" my zoo photos then I need to sign a "cooperative photography agreement" and send them 2 CD's of my zoo photos allowing them use for marketing with photo credit."

I'm not sure where folks got the impession that the zoo wanted unlimited rights.

Glad that's resolved!

moose135

daylightimages wrote:

Those of us who photograph trains for a hobby in the post-9/11 world have had to become educated in where we can and cannot take photos, because there's always some security guard or cop who says, "You can't take pictures of trains."

Try taking pictures of airplanes and see how many different law enforcement agencies you get to talk to...

daylightimages

moose135 wrote:

Try taking pictures of airplanes and see how many different law enforcement agencies you get to talk to...

I have several friends who take airplane photos, and for the most part there have been no problems (you do get the scattered Barney Fife encounters, but nothing serious). In fact, many airports have plane watching parking areas where photography is freely allowed. Whenever I fly on a good-weather day, I always try to spot the "plane spotter" parking area at each airport I fly into. Houston's in real obvious!

Sam

Steve,

I have my good days and my bad days..........:D

I am just getting tired of loosing rights, and of everyone trying to make money unfairly without any work or effort.

But as I stated this isn't the case here.

Sam

daylightimages

Believe me, Sam, you and I are really on the same page. There's no one that gets more defensive than me when it comes to photographers' rights, be it copyrights or constitutional rights.

SB ZOO

Note From Santa Barbara Zoo
Hi, Folks:

Santa Barbara Zoo responding ...

The Santa Barbara Zoo Cooperative Photography Program is something we've developed and has been VERY, VERY popular with photographers. We will release photo rights to the photographer as long as we are able to use the pictures to promote the Zoo. No cash is exchanged. Photographers are allowed to sell the images. The Zoo uses the images are used to promote our zoo and our zoo only.

Two photographers have been contacted by other Zoos thanks to publicity from us to purchase images. A local photography professor has licensed his images to National Geographic. Four others have come from LA and San Diego as they want to be able to sell their images as stock. Another is trying to start her own stock photo service specializing in birds. Two others have won awards in prestigious national Association of Zoo & Aquarium photo contests. Another amateur was thrilled to get a shot on the cover of the local Yellow Pages, etc., etc.

We are very thankful to the many talented photographers who participate. Our little non-profit could never otherwise afford to hire artists of this caliber. We are dedicated to wildlife conservation through programs here the park and in the wild as well; so, every penny counts.

Carrie, thanks for signing up. We love that image of the black-necked swan. The gibbons in action are a delight. And, you are the first to get good shots of the gorillas wrestling.

Dean Noble
Director of Marketing

Angelo

It's all so very cordial and cooperative and I think it's great to help out a non-profit but evaluating the facts:

a) not sure the zoo, or any zoo, especially one that might receive some public funding, has any ability of preventing you from selling prints.

b) the offer is a bit lop-sided - on the one-hand the zoo has a captive audience that loves to drop cash on all manner of collectibles available in the gift shops. some of those will carry your images. on the other hand how many sources do you have interested in purchasing the same images for commercial use that will come close to equaling the potential revenue stream of the zoo's gift items?

philanthropy aside - if faced with a similar situation I would not sign the agreement (assuming my correctness on the legalities) and should an opportunity arise to sell an image for commercial use I would then seek a property release from the zoo in exchange for a generous share of the license fee.

orljustin

You don't need a release to sell art prints of anything. Especially something with non-trademarked or copyrighted things in it like animals. It would be different for a recognizable character, like Shamu, possibly, but selling prints on your website of some lions is not like that.

I'd tell them thanks, but you are allowed to take and sell art prints without permission.
http://www.danheller.com/model-release.html#8.5

mehampson

Glort wrote:

When it comes down to it, I'm wondering how anyone can claim rights to a species of animal which is what the Zoo effectively seems to be trying. As long as there were no easily identifiable buildings or whatever in the background ( such as a shot taken with a tele lens with blurred b/g) I'm wondering how they claim the likeness of say a Zebra is something they have any right to licence in the first place.

They're not claiming rights to the likeness of a whole species, even indirectly. There are many, many species of animals that have unique individual markings, even if it takes a little knowledge of what to look for -- zebras are one of them. It may be about as distinctive to the viewer as a random building on the grounds, but the zoo might very reasonably be able to look at a photo and tell, correctly, whether it's one of their animals or not, especially if it's one of an endangered or protected species.

And even if it's not an animal that's individually identifiable, why does that matter? You're on private property taking photos of private property, and to get access you implicitly agreed to the owner's terms of how you can use those photos, even if it means you gave up the right to sell prints. The legal question, from what I've read, is around the nature of how explicitly the terms need to be stated, not what they ask for. What this zoo is doing is offering a property release in exchange for usage rights, so everybody has explicit, written permission and knows what they've agreed to.

This may be a very reasonable ( and even photographer charitable) policy or it may be a stepping stone in further undermining the rights and freedoms shooters have now. If they are getting shooters to sign away any rights at all under false pretenses, the next thing you know the same Idea will be bandied around at a conference or such like and then you will have everyone jumping on the bandwagon saying this is how they do it, we are going to do the same.

Undermining our rights and freedoms? False pretenses? Let's be more certain about who's grabbing at whose rights before we make such inflammatory remarks. Most, if not all, private organizations that allow public access have the same type of implicit terms, printed on the website or the ticket stub or someplace. I'd be surprised if the local supermarket doesn't have something similar. This zoo is certainly not the first to have them, and I seriously doubt the zoo industry invented them. They're offering a pretty fair trade for a property release -- there's no reason to think that "fair" means the property owner gets nothing out of it.

Look, I'm a pro-artist-rights as anyone else here, but it works both ways. If we want to have the moral high ground when our rights are violated and the protections we place on our work are disrespected, we need to be very sure we're doing the same for others.

GoofBckt

After reading all the POVs here and mulling it over, I am in agreement with your statement, mehampson.
The bottom line is, part of the reason I photograph animals in the first place is because I have such a deep love for them so why not support an organization that cares for and protects them? I have donated photos to horse sanctuaries in the past, so I guess this isn't really all that different. In my heart, I support the cause, so I decided I am willing to "share" and am happy to do so. I hope there will be future opportunities to be of service to them in this small way. I only hope they DO use even ONE of my photos. It would be an honor. Thank you to everyone who gave their advice and most honest opinions here, I really appreciate the efforts. That's why I come here.
~C

mehampson wrote:

They're not claiming rights to the likeness of a whole species, even indirectly. There are many, many species of animals that have unique individual markings, even if it takes a little knowledge of what to look for -- zebras are one of them. It may be about as distinctive to the viewer as a random building on the grounds, but the zoo might very reasonably be able to look at a photo and tell, correctly, whether it's one of their animals or not, especially if it's one of an endangered or protected species.

And even if it's not an animal that's individually identifiable, why does that matter? You're on private property taking photos of private property, and to get access you implicitly agreed to the owner's terms of how you can use those photos, even if it means you gave up the right to sell prints. The legal question, from what I've read, is around the nature of how explicitly the terms need to be stated, not what they ask for. What this zoo is doing is offering a property release in exchange for usage rights, so everybody has explicit, written permission and knows what they've agreed to.


Undermining our rights and freedoms? False pretenses? Let's be more certain about who's grabbing at whose rights before we make such inflammatory remarks. Most, if not all, private organizations that allow public access have the same type of implicit terms, printed on the website or the ticket stub or someplace. I'd be surprised if the local supermarket doesn't have something similar. This zoo is certainly not the first to have them, and I seriously doubt the zoo industry invented them. They're offering a pretty fair trade for a property release -- there's no reason to think that "fair" means the property owner gets nothing out of it.

Look, I'm a pro-artist-rights as anyone else here, but it works both ways. If we want to have the moral high ground when our rights are violated and the protections we place on our work are disrespected, we need to be very sure we're doing the same for others.

orljustin

mehampson wrote:

to get access you implicitly agreed to the owner's terms of how you can use those photos, even if it means you gave up the right to sell prints. The legal question, from what I've read, is around the nature of how explicitly the terms need to be stated, not what they ask for. What this zoo is doing is offering a property release in exchange for usage rights, so everybody has explicit, written permission and knows what they've agreed to.

While the organization may have the right to stop you while on their property, once off, with your images, you are free to do as you like:
"Interestingly, despite the fact that you may have taken photos against the policy stated by the admission ticket, this has no bearing on the limitations of your right to license those images. This is because properties (and animals) do not enjoy the same privacy or other protections by law that people do. I'll touch upon this in the next section on Property Releases."
http://www.danheller.com/model-release.html#8.1