I am nowhere close to being a pro-level photographer. But in my travels I do get some nice photos when visiting tourist railroads and museums.

Lately I've noticed commercial photography bans being mentioned. Of particular note, a commercial photography ban on the Durango & Silverton... winter photo special. Which seems particularly odd, since the whole point of the trip is to get really good photos of the train. (That's not a knock on D&S... 611, Age of Steam Roundhouse, and others have similar wording on their sites).

As someone who has thought about selling some prints at local art shows or train shows, I'm wondering what counts as "commercial use" under the law. And maybe get others opinions / experiences with such rules.

Also... I'm assuming the more expensive Pete Lerro (and other) style charters don't include such a ban (certainly I've never seen any such wording on Lerro's site or sign-up forms).

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Could this be aimed more towards people using the railroad and its property as backgrounds in their photographs, for example, weddings, graduation pictures, etc? The last railroad I was involved with had a serious problem with photographers trespassing and using our property and equipment as part of their pictures. Some of these photographers were relentless and the police would be involved. Some of these photographers would have their clients climb in, on and all over the equipment and rolling stock. We even had a policy to work with photographers if they called in advance. But there is always the few that can't follow rules.

Yes, that's kind of what I was thinking too. You also don't want photographers coming in and setting up extra lighting equipment, posing models, etc. for commercial use. Or for a pro photographer to use your museum as a photo studio.

I know it's legal to sell photos for "editorial purposes" (example would be... Trains Magazine). I would think if I created a photo book of trains, that is an editorial purpose, even though the photos would be the main draw?

But what about selling photo prints online? Is selling photos as art commercial use?

If you are not on RR property, they can't do a ding-dong thing about it.

He's nailed it.

The primary, if not the exclusive, function of such language/notices is specifically to prevent the property from being used as an ad hoc photography studio without authorization or permission, or--more to the point--safety protocols.

I have witnessed utterly oblivious photography professors from a nearby art college bring an entire class of 20-30 people to a rail museum property and then proceed to swarm the site with total disregard for operations, safety, or whatever. In at least one case, the objective of the shoot was apparently the likes of "urban decay," and the students were eventually ejected once they started climbing into and on top of stored rolling stock.

There are two incredible asides to this one instance: 1) the museum in question has no problem whatsoever with photographers and their models/gear/etc/ ONCE THEY ASK PERMISSION and clear their presence with staff (and get lectured where they can and cannot go, and when); and 2) the one professor was very nearly arrested by police (in fact, she may well have been charged) after she refused to believe that the staff of the museum had the authority to eject her and her students from the property--she apparently thought it was all city/county/etc. property that she and her students were entitled access to as taxpayers (yeah, right).

The other thing this tends to (attempt to) prevent is, for example, some uninformed hack photographer compiling a "guide to the XYZ Museum" book full of inaccurate info and lackluster photography.

Further, if you're going to pose models for Cosmopolitan or Esquire at Travel Town or the National Museum of Transport, or shoot an episode of the latest action drama serial with trains as a backdrop, an outfit like that deserves to pay professional location fees to the administration of said site. Even steep fees are usually a small fraction of what it would cost to build a set, and the monies go towards upkeep (hopefully).

There have also been at least three instances that I am personally aware of where people have discretely filmed, or attempted to film, video pornography on heritage lines, both vintage-themed and modern-day. In at least one instance in the UK, the arrangements were made in advance (vintage-themed, with costumes), the usage was timed to be away from the public eye, and the railway in question was compensated quite well--but then someone managed to recognize the railway in question, and selected outrage ensued among members and the board of directors. I've also been told of one line/site that, when approached by such a project, upped what would have been their regular fee five- or ten-fold just to make them go away--and, surprise, they were given a verbal OK and a deposit, but the project was cancelled.........

There's one delicate issue that does arise: A few museum properties are under the control of, and function as, public parks (see NMT Kirkwood, Travel Town LA, Carillon Park in Dayton, etc.). On such properties there can be issues of "right of access" versus property control, but even then most such parks have legal means to control access and activities (open a bottle of booze, for example, and see what happens).

On the whole, the real question is how big a target you're making of yourself. I assure you that, for example, Strasburg, the Grand Canyon Railway, or the California State RR Museum are not going to send you an invoice if an amateur photographer like you or I has an article on their place published in the railfan magazines, or sell a couple prints at an art show. I don't even think Disney, the Grand Poo-Bah of copyright/trademark enforcement, would have an issue over their Disneyland trains unless you promote the work as "official." I don't even think the other lines/museums would go after you if you're one of the few thoroughly professional photo-sellers out there, in part because the few that are out there have overlap with trade publications, such as Brian Solomon, Steve Barry, etc. But if you show up every other weekend with three camera bags, a lighting rig set-up, assistants holding reflectors, and a camper for changes of clothes between takes, expect a hostile reception and/or a lot of paperwork to fill out.

Alexander, I actually think the "hack photographer" publishing a guide book would be covered under editorial use. Similar to all of the guide books published for Disney, etc.

In general I think you're right, these railroads have much bigger fish to fry than to track down someone selling 1 print at a time of their steam engine. But at the same time, I wouldn't want to do something wrong just because I don't think I'm going to get caught.

It is. But, as with the above, how much are we really dealing with?

I've seen any number of "photo CDs" of "train photos," fantasy art, and who knows what else hawked online. There are, indeed, so many of them out there that unless you've acquired exclusive rights to a major historic photo collection, the sea is so awash with people trying to hawk this stuff that 1) I'll be surprised if any even sell of the "random stuff on a CD", and 2) the prices are so low that nobody can be making money off this stuff.

Union Pacific caught a lot of flack a short while ago by announcing that they were going to start demanding royalties for use of their logos on anything from t-shirts to models. After several rounds of bad PR and back-and-forth tuning, it ended up as basically token payment and simply approval of usage (i.e. no UP GG1 models).

The other legitimate issue is people who download photos/art online and then attempt to pass them off/sell them as their own. My wife's art agent successfully prosecuted and shut down a young man that did precisely that, attempting to pass of a wide array of fantasy art (largely from the agent's gallery, and some of it my wife's) as his own.

In a field where a good 90-95% of the entrepreneurs are doing very, very well if they just make what is otherwise a hobby barely pay for itself, the money is rarely an issue. But, on the other hand, you probably don't want--to make up an example--an image or video of your railroad/train to become the basis of a "train wreck"-themed national advertising campaign for a fast-food or insurance company......... hey, stranger things have happened.

As I understand it, if you shoot images in or from public places, no photo release is required as it is art, thus considered free speech and you can sell copies. Even of people as there is no expectation of privacy in public. Editorial purposes also fall under the same criteria. Just don't use the image to promote/advertise something for profit. Private property or shoots specifically for commercial promotional purposes can get you into trouble without releases.

As for private property and our rail yard facility.... We have No Tresspassing signs all over and enforce it going as far as to have the location removed from a photography hotspot website. On the other hand, we are rather accommodating if permission is asked before hand and we escort them. Commercial use would require a contract.

Don't take what I'm saying as gospel. Some state laws vary so it's always best to get educated on when photography releases are or are not required. Then you're less likely to get your knickers twisted in an unflattering way.

Ah... that may answer something. Selling a print is art, but selling the same photo to Bud Light to use on billboards is commercial?

Yeah. That would be correct. But please do a little research on the law, not opinion, so you know the criteria for releases and usage.

[Excerpt]

Union Pacific caught a lot of flack a short while ago by announcing that they were going to start demanding royalties for use of their logos on anything from t-shirts to models. After several rounds of bad PR and back-and-forth tuning, it ended up as basically token payment and simply approval of usage (i.e. no UP GG1 models).

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The UP program, as initially conceived, had two objectives - controlling the use of UP trademarks and getting compensation from the commercial use of its trademarks. Due to a change of administration (a new CEO), the objective of getting significant compensation from the use of the trademarks was abandoned some time ago. But the goal of "controlling the use" remained and, to my knowledge, is still in place - which is the reason for "token payment and approval of usage" policy.

Aside from the fact that UP obviously wouldn't want its logos used on inappropriate merchandise, there's an important legal reason for "controlling the use" of a trademark. If a trademark holder doesn't do something to prevent the indiscriminate use of its trademarks, it can lose the trademarks (which would mean that anyone could use them on anything). The holder can also lose the trademarks by abandoning their use on its own products or services. I don't know this as a fact, but I rather suspect this may be one reason UP continues to make use of its more prominent "fallen flag" trademarks (probably not the only reason - UP has a soft spot in its corporate heart for historical stuff).

Commercial photography means pros making photo shoots with models etc. or wedding photos. Venues limit these jobs because they can be disruptive to the visitors and the photographers liable to rearrange or modify exhibits, drill holes in things to hang their stuff and otherwise make a nuisance of themselves, or if they go out on the right of way, a safety hazard.

You need to require special permits with specific times and limitations, and one or more of your people on site to ensure compliance. This costs money so you charge a fee to cover expenses.

Phil Mulligan

If you are having a "commercial" (or a "student film") video or film being made on your property if is often good to know the kind of film or require a script review.

I know of one film shoot that was inside a passenger coach and the film crew decided they needed to remove a seat to set up the camera for the required shoot. Turned out this seat base contained one of the aisle lights that had to be rewired.

I know of one museum that once was the site for filming a TV commercial that had a motorcycle jumping a train (or was it through an box car) at a grade crossing. This caused at least one of the local railroad managers to contact the museum officer he knew to complain about this unsafe premise.

That same museum several years earlier had a night-time film shot inside a streetcar. Only then it was found out to be a "sex" film.

If you are taking photos from public property such as a street, sidewalk, etc. you are protected by the first amendment to the US constitution.
As far as public areas on private property they can only have you leave, they cannot confiscate or have you delete your photos.

https://www.aclu.org/know-your-rights/p ... hotographs