Cameras are everywhere nowadays. They range from the tiny lens in your smartphone to convenient point-and-shoots right up to huge digital SLRs with interchangeable lenses and flashes. Anyone can do photography these days, but while aspiring photographers learn about ISO, the rule of thirds, f-stops and so on, awareness of the legal issues around the taking of photographs is less common. In this article, Arts Law looks at some of the key issues around popular photography subjects in public spaces.
Buildings & architecture
Under sections 66 and 68 of the Copyright Act it is not an infringement of copyright to photograph a building, or to publish that photograph. There are, however, issues of access and restrictions on activity surrounding some building and architectural sites.
Public spaces, particularly ones that attract a lot of people, are controlled by a local council or a government authority which can impose restrictions on people and activities that take place in that space. For example, the New South Wales Sydney Harbour Foreshore Authority which manages Darling Harbour, Circular Quay, the Rocks and Luna Park prohibits commercial photography in these areas without permission, and any person who causes an annoyance or inconvenience in these areas – say a photographer stubbornly blocking a walkway with his tripod awaiting that perfect shot – can be removed by a ranger or police. Sydney Olympic Park takes this further in that anyone causing an annoyance or inconvenience by taking photographs can have their camera confiscated by an authorised person if the photographer doesn’t comply with directions to stop.
Government property such as power stations, railway yards, and military stations are restricted areas, and trespassing into these places may lead to arrest and prosecution. With military stations and areas declared ‘prohibited’ for purposes of Commonwealth defence, photography is actually illegal, and the mere possession of a camera while in such an area can result in its confiscation and destruction along with any pictures and equipment. In serious cases, you yourself may face fines or even imprisonment.
Private property requires permission from the land owner prior to access, otherwise you may be liable for trespass. The land owner will have a right to impose restrictions on activities, for example only allowing certain areas or objects to be photographed. This is done by many museums and galleries which restrict photography of artworks as a condition of entry.
Parks, pools, reserves & beaches
Parks, pools, beaches, nature reserves, etc. are not works for the purposes of the Copyright Act and as such there is no need to seek copyright permissions to photograph them. They are, however, managed or controlled by either a local council or government authority which as described above can make rules regulating photographic activities.
Local councils: These have responsibility for local parks, pools, and most beaches. In the wake of public concern over photography of unsuspecting swimmers in bathing suits, many local councils such as Waverley which manages Bondi Beach have imposed restrictions on photography at beaches and/or public pools. These restrictions have in some cases been extended to other sites such as streets and cemeteries. Most of these restrictions would seem to apply to commercial photography however photography of any sort may be prohibited in specific spaces such as pool changing rooms. If you are going to take photographs in a public space controlled by a local council – pool, beach, cemetery, etc. – you should check with the managing council as to whether any restrictions apply and if so, what.
Government authorities: These have responsibility for national parks and wildlife reserves. It is necessary to identify whether the government authority is a State one or a Federal one. For example, the Federal Government has control over Commonwealth Marine Parks and Reserves, Kakadu National Park, Australian National Botanic Gardens, and restricts the taking and commercial use of photographs in these areas without a permit. State and Territory governments will also control various parks in their jurisdiction such as regional parks, historic sites, and state conservation areas. If you are planning a trip to these types of sites for photography you should make inquiries as to which specific body manages it in order to identify the laws and regulations that may affect you.
Public art & street art
Murals and sculptures enhance a public space and are attractive photography subjects, however because they are artworks they are likely to be protected by copyright. This means a photographer will need to seek permission to reproduce the work in a photograph unless an exception applies. Whether or not there is an exception will depend on the type of art work being photographed.
Sculptures: 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. This would include sculptures in a park or city street, but also sculptures such as headstones and statues in a publicly accessible cemetery.
Murals and graffiti: Although murals and graffiti are generally situated in a public place, because they are two-dimensional artworks the section 65 exemption does not apply. As such, if you substantially reproduce a mural or graffiti work in a photograph you may be infringing the copyright in that mural or graffiti work. Substantial reproduction is not a question of how much has been reproduced like 10% of 70%, but rather a question of quality (i.e. what has been reproduced). This means a photograph looking down a street that happens to have a mural wall running down one side adding perspective is less likely to infringe copyright than a photograph that focuses on a key part of the mural making it the main subject of the photograph, even though the first photograph shows more of the mural.
Logos and trade marks
The way advertising and marketing work nowadays, it is almost impossible to take pictures in an urban area without catching some company’s logo or trade mark. A trade mark, especially a registered one, gives a trade mark owner exclusive rights to use the trade mark and authorise its use on particular goods and services. However, a trade mark is only considered infringed if it is used as a trade mark by another person without authorisation. That means while it’s okay to take a picture of yourself standing in front of the gigantic Coca-Cola sign in Kings Cross and share it on Facebook, using that picture in association your own line of drinks will not be.
Finally, people. The first thing to know about people photography is that there is no personal or publicity right in one’s personal image, so there’s no need to ‘clear’ anything before taking pictures of someone’s face. Current privacy laws are concerned more with the collection and storage of personal information meaning there is no right of privacy, and neither is there (at least thus far) a tort of invasion of privacy. As such, snapping a picture of someone in the street in an urban scene or because you like their fashion sense is generally allowed.
Things get a little more complicated when you photograph people for a commercial purpose, such as a poster where someone’s face is used to sell or advertise a product or service. In this case the subject of the photograph will need to have signed a model release form in order for their picture to be taken. If a photograph of a person is used commercially without that person’s permission, you could potentially be liable for misrepresentation, the tort of passing off, or defamation.
Be aware also that there sensitivities around the photography of people in certain circumstances, and also children. Snapping pictures of people in a private act where they would reasonably expect to be afforded privacy without their permission such as in the bath, on the toilet, or engaged in sexual activities, is a punishable offence under New South Wales law. With children, charges can be laid in many states such for taking “indecent” photographs of a child under the age of 16 without a legitimate reason, even the child was in a public place. These are criminal offences and can result in a fine or imprisonment.
As far as photography in public goes, there is no need to seek permission to take a picture whether the camera is aimed at a building or a person. There may, however, be issues of access to the space, and, where people are concerned, how the photograph is going to be used. And of course, there is one important thing to always remember as a photographer, namely that any photograph you take is protected by copyright owned by you.
Jo Teng is a solicitor at Arts Law who enjoys taking photographs in her spare time.