On a warm November evening the Gunnery and Arts Law played host to some forty artists (and a few lawyers) for the event Cameras In Public. This panel, featuring Arts Law senior solicitor Delwyn Everard, media and entertainment lawyer Stephen Boyle, and travel writer/photographer Ross Barnett, looked at the many and varied legal issues around the use of cameras in public ranging from copyright to security and everything in between. With the tone set by a t-shirt with the slogan, "I'm a photographer not a criminal" the next two hours were filled with illuminating – and often very lively – discussion.
Permits and access
Of all the issues canvassed at the panel, perhaps the one that garnered the most debate was the widespread legal requirement for photographers to obtain permits to shoot in public spaces such as state and national parks and other iconic locations.
While filmmakers are also subject to the permit system, this is less contentious particularly in New South Wales where the Local Government Protocol on Filming sets out how local councils should manage and deal with film projects taking place in their area, with mandatory ceilings on fees and charges depending on whether the filming activity is high impact or low impact. The protocol does not cover stills photography.
Fees for permits (and fines for failing to obtain a permit) are generally a matter for the discretion of the councils and authorities responsible for the space, meaning that they can vary wildly from place to place. For example, Rottnest Island in Western Australia currently only charges photographers engaged in shooting images for "the promotion of a product or service" namely for advertising purposes giving photographers shooting for stock libraries or photographic publications unrestricted access. Parks Victoria charges $275 for an annual landscape photography permit required for all commercial photography, while Waverley Council which controls Bondi Beach charges any person or group wanting to photograph in Waverley's public spaces for commercial purposes a $150 application fee plus a location fee of $75 per hour (assuming the activity is assessed as low impact).
While there is an argument for such permit systems on the basis of legitimate public liability and risk management concerns, the lack of any coherent relationship between those risk factors and the impact of stills photography (as compared to filming activities) and the amount of the fee has contributed to a strong groundswell of objection from commercial photographers. Ross Barnett argues that filmmakers and photographers have been critical contributions to raising public awareness about the iconic and rare conservation value of some of Australia's pristine wilderness areas and are arguably being forced back into studios and away from public spaces by short-sighted policies motivated solely by profit.
Try © Les Irwig
Screen New South Wales, which created the Filming Protocol in consultation with local councils in order to encourage filming in New South Wales through a fair and uniform permit system, will be reviewing the Protocol in the near future with a view to considering whether it should be extended to establish mandatory best practice standards for the regulation of commercial stills photography. Kya Blondin, Screen NSW's Manager, Stakeholder Relations, who attended the seminar indicated that it would welcome submissions from the public on this issue.
For further information see Arts Law's information sheet Do I need a film location release.
An Australian right to privacy?
There is a growing tension between the current pressure for some legislative protection of a right to privacy and the current compulsion of the digital generation to photograph or film images with smart phones and then upload them to new-media sites, thus distributing them around the world almost instantaneously.
The panel reiterated that there is still no right to privacy or right to one's image in Australia. Nevertheless, public sensitivities around the shooting and use of unsolicited images of people, particularly children, mean that it is increasingly difficult to shoot in the candid style of, say, the unrehearsed beach photographs of Max Dupain. In Stephen Boyle's view, it is just a matter of time before Federal and State parliaments move to enact some type of privacy right as suggested by the Australian Law Reform Commission.
In the meantime, there are some legal restrictions which filmmakers and photographers should consider including the existence of legislation in every state regulating the use of hidden cameras or recording devices, as well as the capacity of the Trade Practices Act and defamation laws to be used to prevent certain uses of footage or photographs of people who did not consent to be the subject of the shot in question. A good best practice approach (but one which may defeat the purpose of guerrilla photography) is to obtain a signed release form from any person who can be recognised in any shot. The seminar screened an extract from Heiress Film's recently screened documentary Making Australia Happy showing footage taken in a Sydney public park. Producer Jennifer Cummins confirmed that, "yes, we had to get the permission" from all the joggers and passers-by that were seen in the background. Arts Law has a simple Model Release suitable for use by commercial photographers and filmmakers.
Children as subjects
As the 2008 controversy around the exhibition of renowned artist Bill Henson's photographs of nude and partly nude children showed, the use of children as models (whether in private or public spaces) can be fraught with difficulty. Quite apart from dealing with public opinion and media attention, there are a number of legal issues to be considered. The panel canvassed questions of child employment (the subject of legislation in every State), the definition of what constitutes pornography, censorship and classification.
Child At Beach © Shirli Kirschner
For more information see Arts Law's information sheets on working with children.
For artists who are working with funding from the Australia Council, compliance with its protocols on working with children is also required. See the Australia Council Protocols on Working With Children.
Indigenous Cultural and Intellectual Property (ICIP)
One of the last and most interesting topics raised at the panel was the issue of filming or photographing in public where the content contains or deals with matters of Indigenous cultural significance – for example photos of rock art or sacred sites, the filming of traditional dances or ceremonies, the telling of Aboriginal and Torres Strait Island stories or depicting or naming Indigenous people who have recently passed away. Like privacy, there is currently no specific legislative protection in Australia regulating the unauthorised use of Indigenous cultural information or content. Instead there is piecemeal and imperfect protection derived from copyright, trade practices law and other remedies.
Uluru © Sean King
Arts Law strongly advocates for the formal recognition of Indigenous cultural and intellectual property (ICIP). We urge filmmakers and photographers working in Indigenous communities or dealing with culturally significant Indigenous content to apply best practice principles of respect, consent and consultation. There are a number of protocols available to inform and assist photographers and filmmakers in this situation such as those published by Screen Australia (Pathways & Protocols: a filmmaker’s guide to working with Indigenous people, culture and concepts), the ABC (The Greater Perspective, Protocol and Guidelines for the Production of Film and Television on Aboriginal and Torres Strait Islander Communities).
See also Arts Law's information sheet on ICIP.