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photograph myths

Almost everyone has a camera in their pockets. With the rapidly increasing capabilities of smartphones (I believe one manufacturer made a phone with 9 cameras) and the popularity of social media sites such as Instagram and Snapchat, photos and videos have become the preferred method of communication. I myself have used the odd meme (an image with text printed over the top which is supposed to be funny). But with everyone having a camera in their pockets, what restrictions are there on taking photos and videos?

This article will take you through three common myths concerning amateur photography.

Myth #1: I need the permission of those who appear in my photos and videos

A commonly held belief among many people is that they should obtain the permission of those who appear in their photos and videos. While there may be a moral obligation to ask people before taking photos and videos which will include them, there is normally no legal obligation to do so. This is a position that has been reflected by the courts and one judge has even gone as far as to declare that “a person, in our society, does not have a right not to be photographed”. While this may be a judicial declaration, we should consider whether it is 100% true.

When examining the law on this issue, it can be seen that you are free to take photos and videos in a public place, such as a park, road or beach. Furthermore, you are able to take photos and videos of people on private property, provided that they can be seen from a public place. This is because Australian law does not enjoy any general right to privacy of a person’s image. However, the courts have left this issue open so it is possible that a right to privacy may be established in the future at common law.

While you are free to take photos and videos of people in public, if you are in a private place you may not have the same luxury. This is because when you enter private property, you are subject to whatever terms and conditions that the owner may impose upon you. Normally these conditions are minimal, like “don’t take my silverware”, but if you are attending an event on private property, such as a sporting event, art exhibition or concert, you may be subjected to significant reductions on photographical freedom. You probably didn’t read that Conditions of Entry sign, but next time you go out see if entry allows you to take photographs.

In these situations you must comply with the conditions imposed or you may face sanctions at the event holder’s discretion. If you are able to see the area from a publically accessible location, you can generally take photos and videos without fear of sanction.

It should also be noted that if you are planning on using your photos or videos for commercial purposes, you need to obtain a model release form signed by people who are in your photos or videos.

Myth #2: I can take photos and videos of anything I want

Another widely held belief is that people are free to take photos and videos of anything they wish. While this is somewhat true, there are significant exceptions that relate to the law of copyright. In Australia, copyright exists over a publication until 70 years after the artist’s death.

If you are planning on taking photos or videos of a literary work, dramatic performance, artwork or a sculpture you will need to ensure that you obtain the permission of the artist or copyright holder, before you do so, otherwise you may be breaching copyright. If you intend to use these photos or videos for a commercial purpose, you need to ensure that you have the artist or copyright holder’s permission to do so.

It is important to realise that restrictions exist regarding taking photos or videos of some buildings and institutions. Some places, which are subject to such restrictions, include some railways, electrical power stations, military bases and other government institutions. The taking of unauthorised photos or videos in these places is subject to severe penalties including confiscation and destruction of your camera, fines and even imprisonment. Just ask the ABC what happens when you annoy the Government.

If you wanted to take photos or videos of a public place there will normally be no issue but it is important to also ensure that you do not obstruct the public when taking photos or videos.

Myth #3: I can use my photos as I wish

Many people are of the opinion that they can use their photos or videos as they please. This really depends upon what purpose the photos and/or videos are being used for. If you plan on using the photos or videos to make money, you may face restrictions. This is especially the case if your photos or videos contain other people, private property or copyrighted work. If you fall into this category, it will be necessary for you to obtain the consent of the relevant parties.

A common example of people ignoring this requirement for consent is those who attend a concert or sporting event and either sell their photos and videos or post them on social media. In these circumstances, the person posting or selling their media has likely breached the terms and conditions of their ticket whilst also simultaneously infringing copyright. In such circumstances, the artist at the concert or the organiser of the sporting event may seek compensation from the person – although I think I could confidently say that no one who went to the State of Origin game is going to be sued for posting a selfie at the game.

In most circumstances, you will not experience any issues by simply taking a photo or video of something while you are out and about. In the event that someone does confront you about doing so, it is wise to politely discuss the issues with your confronter to see what is upsetting them about your taking of a photo.

For more information about taking photographs or videos in private locations, see our article here.

If you are experiencing an issue like this or would like further information on the subject please contact our office on 13 58 28.