Who’s a pretty boy, then?

Pied flycatcher - Ynyshir
Pied flycatcher – Ynyshir

Sitting staring out of my window at sullen grey cloud and the branches of the ash tree in the garden whipping backwards and forwards, it is difficult to recall the delightful conditions we experienced during April.

In this part of the world the last week in April is a critical one for photographing small woodland birds. Most of the migrants will have arrived but the leaves are not fully open, meaning that those birds are still visible. During several visits to Ynyshir RSPB reserve during late April there’s no doubt that the most prominent of those attractive summer visitors was the pied flycatcher. I spent many hours with two males which were both energetically defending small territories around their chosen nest-boxes. For hour after hour they flew from bare twig to bare twig and uttered their simple sweet song. When you see the determination with which they do this it is worth remembering that each bird had probably completed its journey from Africa only a day or two – or possibly just hours – previously. And not only that, but it is quite likely to have been the same nest box they had used last year. By the time of my last visit one bird had attracted a female – again possibly his mate from last year – and they were visiting the box together. Who knows what they got up to in there! (discussing the colour scheme, I should think…..). By that time he was also noticeably less inclined to sing.

Who's a pretty boy, then.......
Who’s a pretty boy, then…….

One bird was easily visible from the Ynyshir hide, which in theory should have made photography easier. But a constant stream of other human visitors to the hide was a distraction for both bird and photographer. How dare they! The other bird was quite approachable out in the open. Over a period of a couple of days altogether I came back with hundreds of pied flycatcher images, many almost identical, and it has been quite an ordeal processing and sifting through them. It was easy to pick out one classic bird portrait, but as far as “pied flycatcher in the landscape” goes I still haven’t come up with an absolute favourite. The birds’ surroundings were usually a jumble of oak twigs and branches, some in focus and some out, with a few leaves, but little regular structure. In any event I plan eventually to show three images together so (in theory) that should make life a little easier when the time comes to make final decisions.

As far as the technicalities were concerned modern equipment makes bird photography SO much easier. At 1000 ASA (equivalent) I was getting lovely clean results with my Canon 5d3, and any noise is easily removed in Lightroom.  Such high sensitivities  allow fast shutter speeds to be used, with lower risk of subject movement or camera shake. Thanks once more to the 5d3 it has been possible to crop down quite deeply into an image to obtain a pleasing composition.  My lens is the new Tamron 150-600 zoom. The Canon version was released several months ago and I was lucky to get hold of one of the first batch. It has received generally favourable reviews – with the proviso that there may be “issues” when focusing on moving subjects, and particularly with older bodies. I can’t comment on that but in general I’m very pleased with the results. The results are certainly sharper and more consistent than the Canon 100-400/1.4x TC combination that I was previously using. As always a black and white bird presents contrast problems in strong sunshine so slightly subdued lighting was helpful

The other birds I had hoped to photograph were redstart and wood warbler. The former was present but difficult to get to grips with; I’ve never found Ynyshir to be the best of places to connect with this species. The latter just hadn’t arrived by the end of the month. Oddly, if one left the reserve and went a short distance inland several wood warblers were holding forth in tall beech trees on the side of the Einion valley. They were impossible to photograph, however, so I wonder if the Ynyshir birds are back yet. And I wonder if this awful weather will relent for a while before I leave for the Camargue on Tuesday?

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The Welsh government and its copyright grab

During the late 1990’s and early years of this century I did a fair bit of freelance work for the Wales Tourist Board. The agreement involved handing over copyright with the images but there was a “nudge, nudge….” understanding with staff at the WTB that any out-takes from the shoot could be retained by the photographer. I wasn’t happy about the loss of copyright but felt that being able to retain identical images (in some cases) was adequate recompense.

Wales Tourist Board commissioned photographers to shoot landscapes and events in Wales. as well as using them itself it would also loan them to tourism-related businesses (free of charge) in order to promote Wales as a holiday destination. It became apparent that almost any business could be on the receiving end of the WTB’s generosity, however.

In the late 1990’s most of the WTB photographers got together to present a case to the WTB for a fairer contract. This initiative was led by a former photographer, Steve Benbow, who had by then started a commercial picture library specialising in Welsh subject matter. This was a direct competitor to the WTB in many instances so he found himself on an very uneven playing field indeed.

Letters and meetings with WTB staff followed. It was suggested that the WTB followed the Scottish Tourist Board’s example by themselves setting up a commercial picture library which would pay the photographers a percentage of the income from the images. But the WTB refused to listen. They were determined to retain copyright, come what may. When asked to explain why, they claimed, for example, that the photographer might use an image to show Wales in a poor light while the WTB used the same image to show it in a good light! Hardly likely at all.

This went on for a couple of years with no solution being found. I began a commission for the WTB one summer assuming the contract would be unchanged. When it arrived I discovered that the WTB had further tightened it up to their advantage. The photographer had to agree to hand over EVERY piece of film from the shoot, rejects and all. The loophole was closed. I was particularly irate about this because it showed that the WTB had no intention of working alongside its photographers; instead, it had every intention of dominating them. Despite being half way through a lengthy commission, and knowing that I wouldn’t get paid, I told them I would not sign the new contract.

The letter writing campaign continued when the WTB was absorbed into the Welsh Assembly Government, but to no avail. In fact the WAG adopted the WTB methods of dealing with photographers for all its departments. For me it was a matter of principle – I would not work under these terms. It was particularly galling that one part of the UK government was bypassing the 1989 Copyright, Designs and Patents Act, set in stone by the UK government to protect the rights of the freelance. And the Welsh Government (as it now calls itself) continually encourages other businesses to protect their intellectual property and profit from it whenever possible. Talk about hypocrisy!

Over the years the economic climate has changed and I feel myself reluctantly considering whether to work for the Welsh Government again. The copyright grab continues, and the photographer must still hand over every single image. In the digital age it would be easy for them to identify exactly when an image was taken or if one was missing from a sequence. They do seem to have it all sown up.

But in one respect they have softened. There is now a “fair use” clause in the contract. It states –

“Contractors have limited permission to use copies of imagery produced in the execution of assignments for the Client in order to promote them, using a portfolio or similar promotional tool.

Such use will in no way contravene the Client’s copyright. However fair use rights do not extend to the commercial sale or licensing of such imagery, either directly, or via a third party (e.g. a stock library or photo agency).

In all instances, written permission to use Client imagery for promotion should be obtained from the Contract Manager prior to the use of that imagery.”

This might seem to be an improvement but looked at in another way the WG has still turned copyright on its head. Rather than the photographer giving the client a licence to use the images in return for a fee, it is now the client that offers permission to the photographer – if they feel like it!

I thought I would float this situation for comments in the “Talk Business” section of an online photographers forum. I thought there might be a range of opinions, including some backing me up. But not a bit of it. The overwhelming view was that the client (Welsh Government) is making the terms and conditions of the contract quite clear so it is then up to the photographer to decide whether to go for it or not.

It is probably too late to do anything about it now but with the benefit of experience one does have a different perspective. If, over the past twenty years, photographers had taken a principled position and refused to work on these terms, clients would soon learn not to offer them! Because most did not it is increasingly becoming accepted that unless copyright is handed over, a photographer will not get the work. We called that a copyright grab in the 1990’s and in my opinion, it still is.