Copyright and photography
Disclaimer: the following is NOT legal advice, as I have no legal qualifications to give it, but is my understanding of the situation as it stands in Australia, derived from Australian Copyright Council information sheet for photographers for use as a rapid reference for photographers coming to or living in Australia.
Copyright and photography in Australia:
as a general rule, the photographer owns the copyright of all images he or she takes, irrespective of who owns the camera or equipment, with the exception of the following situations:
there is an agreement from the photographer that states otherwise;
if more than one person is involved in the creation of the image, then there should be a written agreement as to who will own copyright
if the photographer takes the photo as part of their employment or for the government:
in which case the first copyright resides with the employer/government unless agreed otherwise or in the following situations relating to a photographer not being a freelance photographer, who works as an employee of a newspaper or publisher:
for photos taken after 30th July 1998, the photographer owns the copyright to photocopy or include them in books, but all other copyright resides with the publisher;
commissioned photographs where a client pays the photographer (I will only include the current rule, not pre-1998):
if the photographs are taken for "private or domestic" purposes such as family portraits or wedding photos, then the client owns the copyright BUT the photographer has the right to restrain use of the photograph for purposes other than for what it was commissioned.
if the photographs are for commercial purposes, then copyright resides with the photographer unless agreed otherwise, however, the client may still have implied licence to make reproductions if it is for the commercial purpose as agreed.
copyright of photographs last for the life of the creator plus 70 years (but if the government owns it then it is 50yrs from 1st published or indefinite if never published), but for photographs taken prior to 1st Jan 1955, their copyright has expired.
once a work is no longer under copyright, it can be said to be in the "public domain" - just because a work is displayed in a public forum does not mean that it is public domain as it still may be copyrighted.
copyright protection is automatic:
one does not need to do any paperwork to register for it, and in the case of a photograph, copyright commences from the moment it is taken, but for added protection only to assist in legal cases and to inform the public, the published work should be marked with the copyright symbol, the year the work was created or first published and the owner of the copyright.
owners of the copyright have the exclusive right to:
reproduce, copy and to broadcast to the public such as by websites.
assign (ie. sell) or license (ie. permit others) their rights, with or without limitations, which should be in a written agreement but this is not a requirement, but absence of an agreement will make it difficult in disputes.
photographers also have moral rights in relation to their works to impose certain obligations on people who use their works:
be attributed as creator (hence if a model posts a photograph on a website of themselves, they should ensure the photographer's copyright is displayed unless there is an agreement otherwise).
take action if a work is falsely attributed
take action if their work is distorted or treated in a way that is prejudicial to your honour or reputation.
non-owners of copyright may become owners of copyright of a derived work if they modify an image sufficiently as to make any important, distinctive or recognisable part of the image no longer visible and as long as the photographer's moral rights are not infringed.
copyright does not protect:
information, ideas, styles or techniques:
this is covered by the law of confidential information which prevents the unauthorised use and disclosure by a person of anotherís confidential information, including ideas, that are communicated in trust and confidence:
the information must be of a "confidential" nature;
the information must have been communicated in circumstances that indicate that the person receiving it must respect its confidential nature;
begin any conversation with words to the effect that the information, including ideas, disclosed are confidential and must not be discussed with anyone without first obtaining your [written] consent.
marking any documents submitted "CONFIDENTIAL". If copyright subsists in your documents, also include the copyright owner's notice.
a person's image (ie. the image of a person within a photograph, not the actual photograph you have taken):
Unlike the USA which has a law called the right to publicity, there is no one law in Australia preventing the unauthorised use of your image as a person.
Copyright law is of little assistance in this as it relates to ownership of the copyright and does not cover protection of a person's image.
the current Privacy Act will NOT apply to an individual who posts an image of another person without their consent (see below).
there are 4 main areas of law which may be of use in preventing unauthorised use of your image:
The unauthorised use of the image would need to either lower the publicís estimation of the person, expose the person to hatred, contempt or ridicule, or cause the person to be shunned or avoided.
this is most likely to be utilised if the person or business is in the public eye.
the Federal Trade Practices Act and State Fair Trading Acts:
these laws prohibit commercial conduct which misleads or deceives consumers. To prevent the unauthorised use of an image under this law it is necessary to show that the use of the image would mislead or deceive consumers. This is most likely to occur in the context of false portrayal of endorsement of products or ideas.
the law of passing off:
It is designed to protect the reputation of a business from misrepresentation.
To use this law, you must already have a reputation in the public eye, and thus this law may not be of much utility for the average person.
if you have entered into a contract with the photographer, such as by use of a valid model release +/- a photo-shoot brief which outlines what will be included in the photo shoot, then, photos which fall outside of the brief or the exclusion clauses on the model release may be regarded as unauthorised and not part of the contract.
if you do not have written agreement of the brief or exclusions on the model release (eg. nudity), then it is very much less likely that contract law will be of assistance.
this is why photographers require models to sign model releases - to ensure both parties are clear on the agreement.
ownership of the physical items such as negatives or digital files is SEPARATE to copyright ownership, the owner being the person who paid for the items. If a photographer has charged a client costs for the film, the client will physically own the negatives, but the photographer may still retain possession and have a duty of care to keep them safe and return them to the client when requested. The corollary is that even if a person owns the negatives, they may not reproduce images from them unless they also have copyright licence to do so.
trade marks or business names:
Restrictions on photography in Australia:
there are legislative provisions that restrict photography in Australia which include:
restrictions on commercial photography of Commonwealth reserves such as Kakadu, Uluru which require applying for and paying for a permit - penalty may include loss of photographic equipment and film/media.
restrictions on commercial photography of Sydney Harbour Foreshore public areas unless authorized by the Sydney Harbour Foreshore Authority.
restrictions on commercial photography in State Parks unless you have a permit - for Victoria, see here.
restrictions on commercial photography in some public areas according to local council requirements - may need a minimum $20m public liability insurance and lodge a permit application.
trade practices may place restrictions such as:
unauthorised use of images of persons or buildings which may adversely impact on that person or business such as by misleading or deceiving the public, or the context of use or the image itself is defamatory.
thus, generally if you have asked someone to sit for you, a model release should be signed by that person which will minimise your risk of actions under the law of passing off or Trade Practices Act.
casual shots of people in the street or playing sport, when it is impractical to obtain a model release, may not be able to be used commercially if they contravene the Trade Practices Act.
in general, if you use photos of anyone where they are identifiable and the image will be used to sell a product and you do not have a signed model release, you are asking for litigation.
invasion of privacy:
in general, it is not an invasion of privacy to take a photograph of another person, but there are some circumstances when it may be (see http://www.privacy.gov.au ):
the current Privacy Act only applies to:
a person's "personal information" which is in the form of a record such as a document, database, photograph or other pictorial representation of the person, and,
businesses larger than $3m annual turnover or health providers
thus if such a business placed a person's photograph on the internet without consent, the person could refer the matter to the Privacy Commissioner.
thus the current Privacy Act will NOT apply to an individual who posts an image of another person without their consent (see http://www.privacy.gov.au/publications/photosub.pdf ), the government is looking at legal reforms to address this loop hole where such images may be used inappropriately or unreasonably, but still maintaining the general freedom to take photographs in public places.
In general, it appears that it is reasonable for an individual to publish photos of other people without their explicit consent if such publication is in a reasonable context (ie. holiday beach photos which include other people shown on a family album site but not on an erotic voyeuristic web site which may cause harm and distress).
it would be reasonable behaviour that an individual remove such unauthorized images from publication if requested to do so by the person in the image or their guardian.
furthermore, behaviours that may be construed as being voyeuristic should be avoided, in particular this is the case where children are involved, hence many venues place bans on use of mobile phones in change rooms and schools will often question anyone with a camera in the vicinity of a school.
the criminal law has also been amended to make it illegal to intentionally use a carriage service (eg. internet) in a way which would be regarded by reasonable persons as being in the circumstances , menacing, harassing or offensive.
the owner of private property (including shopping malls) has the right to forbid you from photographing while you are on their property but they do not have the right to stop you photographing their property when you are outside it, nor do they have the right to assault you, damage or confiscate your equipment or insist you delete the photos.
train stations in Melbourne:
Injunctions may be sought to halt the publication of photographs if the images are indecent, offensive or otherwise demean the subjects in them - but just being embarrassed or uncomfortable would not be sufficient grounds.
similarly, there may be court orders to prevent photography or publication of images of persons under protection such as the Child Protection Act or Witness Protection.
nuisance or trespass:
"For nuisance or trespass, merely taking a photo of someone is permitted. It only becomes an actionable Tort if you photograph the same person again & again over an extended period of time"
NSW Summary Act 1988:
in NSW, criminal charges may be applied if someone takes photos of a "sexual nature" AND they were taken in places where the non-consenting subject would have a reasonable expectation of privacy such as toilets, changerooms, enclosed backyards. Even though this Act does not ban people from taking photos of semi-naked people in public places such as the beach, society and law is increasingly demanding that behaviour by such people that most would feel is offensive, should be avoided.
in case you have just landed from Mars, it is a criminal offence to create, possess or access child pornography.
in Australia, the individual states have their own laws which have generally similar definitions.
seems to only define child pornography as such if a child is engaged in sexual activity, or placed in a sexual context, or subject to torture, cruelty or child abuse.
strangely, there is no mention of nudity itself, although non-sexual nudity may fall under the offence of publishing indecent material, although where indecency is in issue, the opinion of an expert as to whether or not an article has any merit in the field of literature, art, medicine or science (and if so, the nature and extent of that merit) is admissible as evidence.
Victorian law defines child pornography as 'a film, photograph, publication or computer game that describes or depicts a person who is, or who looks like, a minor (ie. under 18 was under 16?) engaging in sexual activity or depicted in an indecent manner or context'.
photographs of minors naked are only allowed in certain specified situations and used in appropriate contexts, these include medical purposes, naturalist communities, family photos of babies and certain indigenous peoples contexts.
BUT the Australian Crimes Legislation Amendment (Telecommunications Offences) Act (No.2) 2004 which covers transmission of images by phone or the internet has a different definition of child pornography:
essentially it includes images of persons or representing persons under 18yrs of age or appears to be under 18yrs of age, either depicting sexual poses, sexual activity, breast or genitals or their representations, that a reasonable person would find offensive.
473.4 Determining whether material is offensive:
(a) the standards of morality, decency and propriety generally accepted by reasonable adults; and
(b) the literary, artistic or educational merit (if any) of the material; and
(c) the general character of the material (including whether it is of a medical, legal or scientific character).
more information on Australian laws:
child pornography criminology:
Internet censorship laws: http://libertus.net/censor/netcensor.html#AusStates
photographer's rights: http://www.4020.net/words/photorights.php
age of consent:
prudent Australian photographers will not take any formal photos of anyone under 18 years without written consent of their parent on a model release even though the age of consent is 16 years in most states (17 years in Sth Aust & Tas).
most Australian photographers will not take photos of females in a sexual context or nude if they are under 18 years of age as they cannot be legally published in Australia (see below).
display of "explicit" images:
the office of film and literature classification is the Australian government agency that administers the national classification scheme for all films, computer games and publications that are exhibited, sold or hired in Australia.
magazines (and websites hosted in Australia) fall into one of two categories:
any depiction of female genitals must be "discreet" - eg. no inner labia visible
any depiction of male genitals must be "discreet" - eg. non-erect
any depiction of sexual activity must be "discreet" and not allowed to be gratuitous or detailed
restricted (magazines must be bound in plastic until sold to persons 18 and over, websites must have age verification system):
images that fall outside of unrestricted category
the subjects in any nude images or images depicting sexual activity must still be 18 years or older, even though the age of consent in most states is 16 years and obviously must not be considered under the definition of child porn as above.
although you are usually permitted to photograph sculptures exhibited in public, you will usually need permission to photograph other publicly exhibited artworks such as murals (cameras are usually banned in most Australian art galleries for paying exhibitions, unlike the Louvre, or Musee D'Orsay or even in Lyon's art gallery).
although there may not be laws against it, many security sensitive sites that may be targets for terrorism may be off-limits to photographers.