The problem of intellectual property in photographs and pictures
To whom should the rights belong?
Some years ago, I was covering an event for an association magazine and when I happy snapped one of the attendees. He joked, “That’s my image, you should be paying me to take it”.
This started a line of thought I have been pondering for some time. What about the artistic rights of photographers and illustrators?
High profile photographers retain their rights
On one hand, you can go to be photographed by a high-profile photographer in the city, pay around $100 per print and still not own the right to reproduce the image. The subject of the picture could be your family portrait, engagement or even wedding.
High profile individuals claim their image
On the other hand, a high profile artist, author or performer might charge a fee for sitting for a photograph. In this instance, it seems that the individual who has a high public profile has the right to sell their image.
So who really owns the picture?
When the balance of opinion on ownership appears to veer towards the subject of the picture rather than the photographer, artist or illustrator, alarm bells go off and indignant questions multiply in my head.
What about compensation for the cost of the photographer’s time and equipment?
What about acknowledging the photographer’s skill in capturing light and focus?
What about the photographer’s artistic judgement in composing the frame?
What about the skills involved in photo-editing, cropping, printing or developing?
The law protects individuals privacy
In most instances, due to privacy laws in Australia, a photograph cannot be displayed in public, placed on a web-site or printed in a newsletter unless the subject has signed a “Permission slip” or “Release form”.
I am assuming that an artist or photographer is attempting to perform as a professional and therefore is covered by the Privacy Act 1988. The Privacy Act 1988 does not cover “individuals acting in a personal capacity” such as the host at a birthday party taking a picture.
There is also an exemption if the photographer is employed by a Media Organisation that is "publicly committed to observing published, written standards that deal with privacy" while disseminating news. In which case, the photographer would have to follow their organisational guidelines.
Caution regarding photographs of children
If the subject of the photograph is a child there are even more complications. The Australian Law Reform Commission has "highlighted the need to safeguard the safety and privacy of children from people with no legitimate purpose for taking and publishing photos".
This means that to be safe, the photographer needs both parental permission and good reason to be photographing children. Showing too much interest in children as a subject can arouse accusations of pedophilia. The photographs need to have clear educational applications or commercial requirements such as the sale of the photographs to families.
Moreover, some councils have banned adults unaccompanied by children from loitering around playgrounds. This is an issue for both the "young at heart" who might find sitting eating their lunch near areas of leisure relaxing and photographers who may wish to capture candid and original shots of a variety of subjects.
What then are photographer’s rights?
1. The right to take photographs in public places
According to the Arts law Centre of Australia it is legal to take photographs on public property or on private property if viewed from public property. Some councils and government organisations do restrict the use of cameras on their grounds however. If this is the situation, the area should be clearly sign-posted.
2. The right to include passers-by in the photograph
In Australia, an unidentified passerby’s image can also be included in the picture as there are no “publicity rights” such as stipulated in the US. (According to the Legal Information Institute: “the right of publicity prevents the unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona”.)
3. The right to photograph buildings, sculptures and works of art
Buildings, sculptures and other works of art may also be photographed when on display in public places. The photographer should acknowledge the creator of the original work whenever possible to avoid transgressing copyright.
4. The right to store and reproduce photographs of their own taking
According to the Professional Photographers of America the copyright of a photograph does belong to the photographer. Photographers have the right to make copies of their works and can require clients to pay for copies. Unless they “sell” the right to make more copies to the client, the client must seek permission to make further copies and may be required to pay for these copies.
The exception to this rule may be when the client is an employer as employers are often considered to own works commissioned while the employee was receiving a wage for their time.
5. The right to restrict a client from using a photograph for purposes other than that stated in the purchase contract
This means if the photographer sold the photograph and rights to the client for a portrait or family gathering, and the client decided to on-sell the image as advertising material; the photographer would in theory be able to stop the client.
Ensure your right to publish by getting signed release forms
When using the picture for “commercial purposes” as a professional photographer or artist would do, it is “advisable” to obtain a signed “model release form” to demonstrate the subject’s willingness to have their image published.
Images taken in public places may also require permission forms from the council or management of that area.
Always protect yourself by obeying the law
It is logical to assume that the photographer also needs to abide by the law of the country.
- This means a photograph should not be used to damage the subjects good name (defamation),
- Do not give a mis-leading impression of a product (false advertising),
- Do not steal other people’s ideas (copyright infringement),
- Never invade personal privacy in areas such as changing rooms and toilets etc...(Voyeurism, pornography laws)
- The photographer must also avoid stalking subjects, harassing subjects, or causing obstructions in public areas.
- Permission is also required to enter and photograph private property, failure to get that permission may be construed as trespassing.