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photo:legal

is your photograph legal and ethical?

Introduction

  • Disclaimer I am not a lawyer and this is NOT legal advice, but just some things you may want to consider!
  • Copyright law is primarily economic - recognizing the right of the creator to be remunerated for uses of their work, the owner can generally sue for actual damages such as loss of license remuneration or profits gained from use of the work without license (and, in the US, if the work was registered prior to infringement, they may also be able to sue for statutory damages) - an exemption may be “fair use” (eg. for research or educational uses), and the image must have some creativity in it for it to be copyrightable
  • Moral rights is personal, recognizing the right of the creator to be connected to their works or derived works and that the works are an extension of the creator's personality - in other words any use of their works should be clearly attributed - social media websites such as Tumblr, Pinterest, etc make it extremely easy for users to blatantly disregard moral rights by their image cross-sharing ease without requiring image attribution, and the works should not be used in a manner derogatory to the creator's intent - an exemption may be trying to take reasonable steps to identify the creator
  • Criminal law breaches may have devastating long lasting ramifications for those in breach, particularly, if the breach comes under the umbrella of a sexual offense as may be the case in publishing intimate photos without consent (eg. not getting a model release), or failing to ensure a model is over the age of 18yrs

Could your photograph incriminate you for breaking the law?

  • photographers have a habit of bending the rules to get the shot they want
  • what many photographers forget though is that by publishing a photograph, they can risk incriminating themselves as the photograph may be traceable to them and to a time and place, and an activity - any of which may have legal implications

obvious considerations are where a criminal offence may have occurred

  • this section generally implies the photographer is either ignorant, stupid, reckless or a blatant criminal.
  • using a camera whilst driving a car in many places would be regarded a legal offence, albeit a summary one, although this could escalate into a far more serious offence if it results in a serious accident injuring or killing others, perhaps culpable driving, etc.
  • taking selfies in the car whilst not wearing a seatbelt, or the driver is obviously committing an offence
    • taking photos while the car is moving may also cause death or at least major facial trauma if the car crashes as air bags may ram the camera into your face 1)
  • invasion of privacy
    • in Australia there is no general right to privacy but there are a number of laws that relate
    • in general, whilst one is generally allowed to take photos of others in public places or even in private places as long as taken from a public place (without violating law of trespass on private property), but there are many exceptions to this, particularly if the images are non-consensual intimate (this could potentially extend to people in swimwear on a public beach) or sexual, or if the photographer's behaviour is offensive or harassing.
    • several states of Australia have introduced new laws relating to non-consensual recording or sharing of intimate images such as:
        • “Agreeing to the recording or distribution of an image on one occasion, or to a particular person, or in a particular way, does not mean that a person will be taken to have agreed to recording or distribution of another image, or on another occasion, or to another person, or in another way.”
        • photographing people through their windows (or even in public spaces if the images are deemed intimate) without consent is likely to be a criminal offence!
  • trespass
    • this includes entering private property without permission
    • certain government places restrict unauthorised entry eg. power stations, railway yards, military stations
  • other places where photography is forbidden by law:
    • local councils may have regulations against photography in schools, cemeteries, swimming pools or beaches
    • State or Federal laws may restrict commercial photography without permit in various places such as national parks
  • operating a drone outside of the guidelines for drone operation
  • offensive behaviour
    • in most parts of Australia, adult nudity per se is not an offence as long as it is:
      • not intentional exposure with sexual intent in public or visible from a public place
      • not indecently offensive or obscene - in Victoria, this now includes mooning or streaking in public 2)
      • not specifically prohibited in that public place
    • in some countries nudity in public might bring a very serious penalty - even a death penalty
  • blatant criminal behaviour
  • inadvertent ignorant criminal behaviour such paying a model for sexual activities when they are not a legal prostititute
  • non-consensual behaviours - harassment, abuse, etc
  • contextual use of imagery which may open risk of defamation
  • offences relating to child pornography
  • selling images you do not have the rights to sell (see below)

issues specific to commercial use of photographs

  • if one is selling a photograph, they must:
    • own the copyright or a licence to sell the photograph
    • ensure you have written permit from the artist to use images that show any art works or other works which themselves are subject to copyright, this also applies to street art, particularly if the street art is the key focus 3)
      • permanent sculptures in public places are generally exempt:
        • Under section 65 of the Copyright Act, it is not an infringement of copyright to photograph or publish a photograph of a sculpture if the sculpture is permanently situated in a public place or in premises open to the public.
      • a trade mark is only considered infringed if it is used as a trade mark by another person without authorisation, so a photograph containing a trade mark does not infringe copyright laws, but may infringe trade practices laws
    • ensure that if persons are recognisable, there is a model release or their consent is implicit by their presence (eg. background spectators at a sports event)
    • ensure that if property under copyright (most public buildings are not under copyright in Australia) is recognisable, there is a property release
    • ensure that if the photograph was taken within a specified property such as specified national parks, specified public places (eg. Sydney harbour), or places such as sports arenas particularly where a ticket was required to enter such a place (and these tickets are generally sold with legal conditions relating to acceptable photography), that an appropriate permit has been obtained

ethical issues

  • failing to adequately remunerate third parties
    • if one is selling a photograph of a model, the model release should explicitly state whether commercial use is agreed or not - this is particularly the case for photo shoots which are “TFP” whereby it is generally accepted that the images will NOT be used commercially - if there is an intended change to this status, the photographer should re-negotiate this with the model.
  • appropriate representation of the subject
    • utilising an image of a subject, be it a product, model, or otherwise, in a controversial context without the subject's consent, is likely to be considered unethical as a minimum, but may also contravene other laws such as defamation
  • originality of the imagery
    • this may fall under copyright law
    • it is generally bad form to pass off an image as being original when it is essentially a copy of another person's specific creative efforts, or indeed a derivative of another person's works

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.
    • 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:
    • common law:
      • 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.
        • 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'.
      • 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
          • ©  the general character of the material (including whether it is of a medical, legal or scientific character).
      • more information on Australian laws: 
    • 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).
      • consent though will not get around child pornography laws - and the child does not need to be nude!
    • 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.

other ethical issues

  • ensuring no harm is done
    • this applies to landscapes, people, and other situations
    • this includes respect for the subject, the principles of subject's agreement, and that the subject is not exploited or misrepresented
  • deception of the viewer
    • this is VERY difficult area, particularly in the age of Photoshop
    • everyone will have their own views, and the importance of declaration will depend upon:
      • the type of image - a documentary style image should be true to life, and some would say landscape photography falls into this category and have minimal manipulations performed, either of the scene or in post-processing
      • how obvious the manipulation is
      • the type of manipulation
    • where possible, the viewer should be informed of the extent of manipulation of the imagery:
      • composited images where multiple different scenes or subject material are combined
      • use of multiple images of the same scene - panoramic, HDR, focus stacking, etc.
      • use of morphing to change body shape
      • the cloning out of significant components of a scene
      • the manual manipulation of a scene such as moving leaves, rocks, etc to create more aesthetic compositions as distinct from real, “found scenes” which are viewer may be assuming was the case
      • use of gradient filters, etc
  • ensuring third party creators are credited
    • models, makeup artists, producers, stylists, etc should be credited where possible unless they prefer to remain anonymous (which they may well wish to do to avoid stalkers harassing them)
  • cultural misappropriation

will your photographs adversely affect your brand or your career?

  • there is a common saying - you are perceived as being only as good as your worst photograph
  • publishing multiple images from one shoot tend to bring the perceived average quality down compared to only publishing the one best shot
  • publicly criticising others, especially third party co-creators such as models, nearly always comes back to bite you
  • even if your photography is legal and ethical, the content of your photographs and your behaviour or commentary may have a massive impact on your branding, and this may even affect your non-photography career prospects if they do not fit well with prospective employers or professional bodies
photo/legal.txt · Last modified: 2017/12/12 14:08 by gary1