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photo:copyright [2017/11/14 13:54]
gary1
photo:copyright [2017/11/14 13:57] (current)
gary1
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       * see [[http://​www.artslaw.com.au/​LegalInformation/​BusinessNames.asp|http://​www.artslaw.com.au/​LegalInformation/​BusinessNames.asp]]  ​       * see [[http://​www.artslaw.com.au/​LegalInformation/​BusinessNames.asp|http://​www.artslaw.com.au/​LegalInformation/​BusinessNames.asp]]  ​
  
-=====restrictions on photography in Australia===== 
  
-  * there are legislative provisions that restrict photography in Australia which include: ​ 
-    * restrictions on commercial photography of [[http://​www.deh.gov.au/​parks/​|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 [[http://​www.shfa.nsw.gov.au|Sydney Harbour Foreshore Authority]]. ​ 
-    * restrictions on commercial photography in State Parks unless you have a permit - for Victoria, see [[http://​www.parkweb.vic.gov.au/​resources/​16_0698.pdf|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 [[..:​ModelRelease|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|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|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. ​ 
-    * **private property:​** ​ 
-      * 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: ​ 
-        * [[http://​www.connexmelbourne.com.au/​index.php?​id=56|http://​www.connexmelbourne.com.au/​index.php?​id=56]]  ​ 
-    * **common law:​** ​ 
-      * see [[http://​www.4020.net/​unposed/​photorights.shtml|http://​www.4020.net/​unposed/​photorights.shtml]]  ​ 
-      * **injunctions:​** ​ 
-        * 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. ​ 
-    * **child pornography:​** ​ 
-      * 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. ​ 
-      * [[http://​www.austlii.edu.au/​au/​legis/​nsw/​consol_act/​ca190082/​s91g.html|NSW law]]  ​ 
-        * 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 [[http://​www.austlii.edu.au/​au/​legis/​nsw/​consol_act/​ca190082/​s578c.html|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. ​ 
-        * [[http://​www.austlii.edu.au/​au/​legis/​vic/​consol_act/​ca195882/​s67a.html|http://​www.austlii.edu.au/​au/​legis/​vic/​consol_act/​ca195882/​s67a.html]]  ​ 
-        * [[http://​www.legalaid.vic.gov.au/​745.htm|http://​www.legalaid.vic.gov.au/​745.htm]]  ​ 
-      * BUT the [[http://​www.austlii.edu.au/​au/​legis/​cth/​consol_act/​claoaoma22004729/​sch1.html|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:​  ​ 
-          * [[http://​www.aic.gov.au/​publications/​tandi2/​tandi279t.html|http://​www.aic.gov.au/​publications/​tandi2/​tandi279t.html]]  ​ 
-          * [[http://​www.aic.gov.au/​publications/​chpornography/​|http://​www.aic.gov.au/​publications/​chpornography/​]]  ​ 
-        * Internet censorship laws: [[http://​libertus.net/​censor/​netcensor.html#​AusStates|http://​libertus.net/​censor/​netcensor.html#​AusStates]]  ​ 
-        * photographer'​s rights: [[http://​www.4020.net/​words/​photorights.php|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: ​ 
-        * unrestricted: ​ 
-          * 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  ​ 
-  * although there may not be laws against it, many security sensitive sites that may be targets for terrorism may be off-limits to photographers. 
photo/copyright.txt · Last modified: 2017/11/14 13:57 by gary1