Quite a row blew up last year when English Heritage sent a message to a picture agency saying… “Please be aware that any images of Stonehenge cannot be used for any commercial interest, all commercial interest to sell images must be directed to English Heritage’. It turned out that wasn’t quite what was meant and a statement was issued saying“We regret the confusion…. We do not control the copyright of all images of Stonehenge and have never tried to do so.”

But in fact the clarification was less than clear because although it is strictly true that they don’t seek to control the copyright of all images of Stonehenge they DO seek to gain a fee from the taking of some images: “If a commercial photographer enters the land within our care with the intention of taking a photograph of the monument for financial gain, we ask that they pay a fee and abide by certain conditions … The majority of commercial photographers respect this position and normally request permission in advance of visiting.”

Thus, to clarify their clarification: although they have never sought to control the copyright of all images of Stonehenge nevertheless if someone enters land within their care with the intention of taking pictures for commercial gain they are asked for a fee…

It’s a distinction that’s indistinct, to say the least, and bound to create difficulties. For instance, what if a person enters the land as a tourist but later decides to publish his amateur snaps in a coffee table book? On the basis of English Heritage’s own criteria no fee could be anticipated or incurred or retrospectively owed since the essential element, intentionality when they entered the land, cannot be shown. Indeed, the only person that can bear witness on that matter is the photographer himself.

So a clarification of the clarification is surely needed. The position is so unclear that even EH staff have recently been getting in a muddle over it, telling an old soldier he had to pay a fee.

Indeed, rather than a clarification a confession might be best. Don’t these phrases used by English Heritage… “we ask that they pay a fee” and “The majority of commercial photographers respect this position and normally request permission in advance of visiting” suggest awareness that in practical terms (and perhaps legal ones) no fee can be enforced; only requested?

Yet in the latest incident “the spokesman explained that commercial photographers must obtain prior permission for pictures taken for ‘financial gain’ and pay a ‘small fee’…”

 “Must”? Should that actually be “we request”?

Incidentally, here’s a puzzler. Should or did EH claim a fee for the Guardian for this ? ? It’s a bloke leaping off the top of the monument, something EH say isn’t allowed and indeed don’t acknowledge happens (the year it happened their Chief Exec said there was “no trouble”!) So, should a quango whose duty is to prevent people climbing on Stonehenge, but lets them year after year and doesn’t mention it is happening charge for pictures of it?