Legal Issues in Photography

Photographer’s legal rights increasingly come under attack from all sections of society. One of the most insidious are attacks from sections of the media. Aspiring professional photographers seeking information on their legal rights and obligations over taking and using their images need to be careful where they get their legal information. Popular media often seeks to sensationalize and fan moral panic about notions of privacy in public places. Well-meaning writers lacking proper journalistic training in media law help propagate urban myths about privacy while confusing editorial and commercial uses of photography.

Professional Training

One contributing factor to urban myths perpetuated in the media about photographer’s rights is the ignorance of writers who lack proper professional training at accredited educational institutions. Universities that include compulsory study of media law run by their school of law as part of Journalism major provides the essential legal background to understand the legal implications of their writing.

Precision in language about legal matters and variations in applicable laws is important. Especially across national borders and where countries are federations and there is conflict between state and federal laws. Even the law itself can be difficult for trained professionals as situations can present unique interpretations that can go as far as the Supreme Court to make the definitive interpretation of what the law means.

Commercial Use Myths

A common misconception is that making money from the sale of photography means it is commercial use of the image. This is completely wrong as the meaning of commercial use of images relates to their use to sell other unrelated predicts as such as advertising or sale of shirts by printing the image on the shirt. Selling images as part of something that conveys information, such as editorial use, or alone as works of fine art, then even though the creator of the image makes money from selling the image it is not commercial use of the image.

Freedom of the Press

This is often mistakenly confused with freedom of expression. People commonly accept the right of large media organizations to claim the right of editorial usage for images as somehow different for Internet or newsletter publishers. This ignores the true origins of the principal of freedom of the press. This originated at the birth of newspapers in the seventeenth century where the state sought to control the flow of information by restricting the right of individuals to print and publish newspapers. Early printing presses had very limited capacity compared to today’s modern monsters and completely lacked the coverage of the World Wide Web. Victory in this battle and in democracies anybody has the freedom to buy a printing press and publish newspapers without approval from the state. The modern equivalent is the blog, where individuals once again have the power to publish their own thoughts, views, or news on whatever aspect of their word they choose as editorial content.

This is not an interpretation likely championed in traditional mass media, as the web looms as a major threat to existing media empires. This principle is often erroneously considered the same as to freedom of speech; an essential part of public discussion in healthy democracy. The foundations of many democratic principles came in a time before advent of modern photography and its impact via modern electronic media. Photography is still a form of “speech” because it conveys ideas as part of discussions in the democratic process.

Limitations on Publication

Although the preceding arguments suggests a license to publish whatever you want there are limitations on the right of free speech, it is not absolute. One of the limitations often misunderstood and overstated, sometimes deliberately, or through ignorance, is privacy. Many democracies have privacy laws but they usually relate to confidentiality of personal information, not to a person’s image. There are restrictions on photography where people have “a reasonable expectation of privacy” as a key principle.

Model Releases

Model releases, property releases, or any other forms of permission are not required to photograph subjects in public view. If people choose to display themselves or their property to the public then they have given up some notion of privacy. This applies to public views of private property. Children are not legally competent to make these decisions, so sometimes it is better to ask a parent first before taking any photographs. As in any modern democracy, the rights of others temper these basic rights. There are a number of legal and moral restrictions on any unreasonable or invasive photography. A judge in the law courts usually makes the final decision on what is unreasonable. If people do not want their photo taken, do not persist and respect attempts to create areas of privacy.

Private Property

On private property, you have no right to photograph. The owner is entitled to ask photographers to stop taking pictures and ask them to leave their property. However, the owner does not have the right to attack you or your property to destroy the equipment or any images you may have taken. It is legal to take pictures of private property from a public viewing point. Often there is confusion when holding public events on private property. It is still private property and the rights of the owner to prohibit photography on the property remain. This also applies to shopping malls marketed as public spaces. While they may mimic the old main street in a town center, they are still private property.

National Security

This is a favorite excuse trotted out by regimes eager to restrict the free exchange of ideas among their citizens. With advances in digital technology, compact phones or cameras are capable of gathering images for any illegal activities without raising attention. Harassing and demonizing people openly taking photographs in public only serves to create an atmosphere of fear and oppression. While there are few restrictions on taking photographs and viewing them as part of a private collection there are many on their public use.

Editorial

This is realm of the photojournalist and art photographers using their photographers to convey information, tell a story or to use their images as a comment on some aspect of society. Here the notion of freedom of expression, as part of free speech, enables the publishing photographs as part of written work or as a photo essay. This includes publishing them as part of collections or display on the Internet. As works of art, including photographs are often considered editorial because they are a statement by the artist, or photographer, on some aspect of life. As such, photographers usually do not need model releases to publish or sell their images. The main legal restriction in this case comes from laws regarding defamation or any other form of denigration of individuals or groups. There are also ethical considerations of publishing photographs of people in distress, and hence profiting from their suffering. The possible public good of highlighting the cause of their suffering counterbalances the possible negative effects on the individual.

Commercial

This generally is using the image to sell something else and not the image itself. The classic cases are advertisements and images on mugs and t-shirts. Wherever the image is used to sell something else it is normally classed as commercial use and you need model, and in some cases property, releases for the subjects. The same goes for copyrighted images or designs, even if you make the image. If it is a recognizable copy, photographic, drawn, or painted, it still could infringe the right of the copyright owner. Many sporting teams make good money from the sales of replica team where and other merchandise emblazoned with team colors and sponsor logos.

Get Releases

A good rule for any general photographer is to try and get model and property releases whenever practical. Often to make the release valid the subject is required to receive something in return, commonly this is a minimum of a nice print. While the images may not have any immediate value or market, it does allow for possible commercial usage of the image, even though it may sit in your own stock library for some time. This process can also advertise your photography services, as the print is a sample of your work and include a promotional brochure along with print. Even though you have a release, there may be problems if the subject becomes famous.

The Right of Publicity

This not applies to commercial use, but to editorial use as well. While well known people have had little success with legal moves to stop the paparazzi they have tried other avenues to limit the use of images. The argument goes similar to the commercial use case even in editorial use. The court may find that the use of a celebrity image is not an integral part of the publication or artwork and only serves to entice people to buy the product. Model releases from unknown models that later become famous are problematic and may come under heavy legal challenge from the subject. The images may have dramatically increased in potential value so it is wise to seek the advice of a good lawyer.