Photography and the law - AbsoluteAstronomy.com

Photography is the art, science and practice of creating durable images by recording light or other electromagnetic radiation, either electronically by means of an image sensor or chemically by means of a light-sensitive material such as photographic film...

tends to be protected by the law through copyright

Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...

and moral rights. Photography tends to be restricted by the law through miscellaneous criminal offences. Publishing certain photographs can be restricted by privacy law

Privacy law

Privacy law refers to the laws which deal with the regulation of personal information about individuals which can be collected by governments and other public as well as private organizations and its storage and use....

. Photography of certain subject matter can be generally restricted in the interests of public morality

Public morality

Public morality refers to moral and ethical standards enforced in a society, by law or police work or social pressure, and applied to public life, to the content of the media, and to conduct in public places...

and the protection of children.

Canada

Canadian police have no legal authority to stop people from taking photos in a public area, and they have no authority to demand that the photographer delete photos already taken.

Legal restrictions on photography

In general under the law of the United Kingdom one cannot prevent photography of private property from a public place, and in general the right to take photographs on private land upon which permission has been obtained is similarly unrestricted. However a landowner is permitted to impose any conditions they wish upon entry to a property, such as forbidding or restricting photography. Two public locations in the UK, Trafalgar Square

Trafalgar Square

Trafalgar Square is a public space and tourist attraction in central London, England, United Kingdom. At its centre is Nelson's Column, which is guarded by four lion statues at its base. There are a number of statues and sculptures in the square, with one plinth displaying changing pieces of...

and Parliament Square

Parliament Square

Parliament Square is a square outside the northwest end of the Palace of Westminster in London. It features a large open green area in the middle, with a group of trees to its west. It contains statues of famous statesmen and is the scene of rallies and protests, as well as being a tourist...

have a specific provision against photography for commercial purposes without the written permission of the Mayor, and permission is needed to photograph or film for commercial purposes in the Royal Parks.

Persistent or aggressive photography of a single individual may come under the legal definition of harassment

Harassment

Harassment covers a wide range of behaviors of an offensive nature. It is commonly understood as behaviour intended to disturb or upset, and it is characteristically repetitive. In the legal sense, it is intentional behaviour which is found threatening or disturbing...

.

It is a criminal offence (contempt) to take a photograph in any court of any person, being a judge of the court or a juror or a witness in or a party to any proceedings before the court, whether civil or criminal, or to publish such a photograph. This includes photographs taken in a court building, or the precincts of the court.
Taking a photograph in a court can be seen as a serious offence, leading to a prison sentence. The prohibition on taking photographs in the precincts is vague. It was designed to prevent the undermining of the dignity of the court, through the exploitation of images in low brow 'picture papers'.

Photography of certain subject matter is restricted in the United Kingdom. In particular, the Protection of Children Act 1978

Protection of Children Act 1978

The Protection of Children Act 1978 is an Act of the Parliament of the United Kingdom.The Protection of Children Bill was put before Parliament as a Private Member's Bill by Cyril Townsend in the 1977-1978 session of Parliament....

restricts making or possessing pornography of under-18s, or what looks like pornography of under-18s.

It is an offence under the Counter-Terrorism Act 2008 to publish or communicate a photograph of a constable

Constable

A constable is a person holding a particular office, most commonly in law enforcement. The office of constable can vary significantly in different jurisdictions.-Etymology:...

(not including PCSOs

Police community support officer

A police community support officer , or community support officer is a uniformed non-warranted officer employed by a territorial police force or the British Transport Police in England and Wales. Police community support officers were introduced in September 2002 by the Police Reform Act 2002...

), a member of the armed forces, or a member of the security services, which is of a kind likely to be useful to a person committing or preparing an act of terrorism. There is a defence of acting with a reasonable excuse, however the onus of proof is on the defence, under section 58A of the Terrorism Act 2000

Terrorism Act 2000

The Terrorism Act 2000 is the first of a number of general Terrorism Acts passed by the Parliament of the United Kingdom. It superseded and repealed the Prevention of Terrorism Act 1989 and the Northern Ireland Act 1996...

. A PCSO cited Section 44 of the Terrorism Act 2000 to prevent a member of the public photographing them. Section 44 actually concerns stop and search powers.

Following a prolonged campaign, including a series of demonstrations by photographers abused by Police Officers and PCSOs, the Metropolitan Police was forced to issue updated legal advice which now confirms that 'Members of the public and the media do not need a permit to film or photograph in public places and police have no power to stop them filming or photographing incidents or police personnel' and that 'The power to stop and search someone under Section 44 of the Terrorism Act 2000 no longer exists.'

It is also an offence under section 58 of the Terrorism Act 2000 to take a photograph of a kind likely to be useful to a person committing or preparing an act of terrorism, or possessing such a photograph. There is an identical defence of reasonable excuse. This offence (and possibly, but not necessarily the s.58A offence) covers only a photograph as described in s.2(3)(b) of the Terrorism Act 2006

Terrorism Act 2006

The Terrorism Act 2006 is an Act of the Parliament of the United Kingdom that received Royal Assent on 30 March 2006, after being introduced on 12 October 2005. The Act creates new offences related to terrorism, and amends existing ones. The Act was drafted in the aftermath of the 7 July 2005...

. As such, it must be of a kind likely to provide practical assistance to a person committing or preparing an act of terrorism. Whether the photograph in question is such is a matter for a jury, which is not required to look at the surrounding circumstances. The photograph must contain information of such a nature as to raise a reasonable suspicion that it was intended to be used to assist in the preparation or commission of an act of terrorism. It must call for an explanation. A photograph which is innocuous on its face will not fall foul of the provision if the prosecution adduces evidence that it was intended to be used for the purpose of committing or preparing a terrorist act. The defence may prove a reasonable excuse simply by showing that the photograph is possessed for a purpose other than to assist in the commission or preparation of an act of terrorism, even if the purpose of possession is otherwise unlawful.

Copyright

Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...

can subsist in an original photograph, i.e. a recording of light or other radiation on any medium on which an image is produced or from which an image by any means be produced, and which is not part of a film. Whilst photographs are classified as artistic works, the subsistence of copyright does not depend on artistic merit. The owner of the copyright in the photograph is the photographer – the person who creates it, by default. However, where a photograph is taken by an employee in the course of employment

Work for hire

A work made for hire is an exception to the general rule that the person who actually creates a work is the legally recognized author of that work...

, the first owner of the copyright is the employer, unless there is an agreement to the contrary.

Copyright which subsists in a photograph protects not merely the photographer from direct copying of his work, but also from indirect copying to reproduce his work, where a substantial part of his work has been copied.

Copyright in a photograph lasts for 70 years from the end of the year in which the photographer dies. A consequence of this lengthy period of existence of the copyright is that many family photographs which have no market value, but significant emotional value, remain subject to copyright, even when the original photographer cannot be traced, has given up photography, or died (a problem known as copyright orphan). In the absence of a licence, it will be an infringement of copyright in the photographs to copy them. As such, scanning old family photographs to a digital file for personal use is prima facie an infringement of copyright.

Certain photographs may not be protected by copyright. Section 171(3) of the Copyright, Designs and Patents Act 1988

The Copyright, Designs and Patents Act 1988 , also known as the CDPA, is an Act of the Parliament of the United Kingdom which received Royal Assent on 15 November 1988. It reformulates almost completely the statutory basis of copyright law in the United Kingdom, which had, until then, been...

gives courts jurisdiction to refrain from enforcing the copyright which subsists in works on the grounds of public interest. For example, patent

Patent

A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....

diagrams are held to be in the public domain

Public domain

Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...

, and are thus not subject to copyright.

Infringement

Infringement of the copyright which subsists in a photograph can be performed though copying the photograph. This is because the owner of the copyright in the photograph has the exclusive right to copy the photograph. For there to be infringement of the copyright in a photograph, there must be copying of a substantial part of the photograph.
A photograph can also be a mechanism of infringement of the copyright which subsists in another work. For example, a photograph which copies a substantial part of an artistic work, such as a sculpture, painting, architectural work (building) or another photograph (without permission) would infringe the copyright which subsists in those works.

However, the subject matter of a photograph is not necessarily subject to an independent copyright. For example, in the Creation Records case, a photographer, attempting to create a photograph for an album cover, set up an elaborate and artificial scene. A photographer from a newspaper covertly photographed the scene and published it in the newspaper. The court held that the newspaper photographer did not infringe the official photographer's copyright. Copyright did not subsist in the scene itself – it was too temporary to be a collage, and could not be categorised as any other form of artistic work.

The protection of photographs in this manner has been criticised on two grounds. Firstly, it is argued that photographs should not be protected as artistic works, but should instead be protected in a manner similar to that of sound recordings and films. In other words, copyright should not protect the subject matter of a photograph as a matter of course as a consequence of a photograph being taken. It is argued that protection of photographs as artistic works is anomalous, in that photography is ultimately a medium of reproduction, rather than creation. As such, it is more similar to a film, or sound recording than a painting or sculpture. Some photographers share this view. For example, Michael Reichmann describes photography as an art of disclosure, as opposed to an art of inclusion.
Secondly, it is argued that the protection of photographs as artistic works leads to bizarre results. Subject matter is protected irrespective of the artistic merit of a photograph. The subject matter of a photograph is protected even when it is not deserving of protection. For copyright to subsist in photographs as artistic works, the photographs must be original, since the English test for originality is based on skill, labour and judgment. That said, it is possible that the threshold of originality is very low. Essentially, by this, Arnold is arguing that whilst the subject matter of some photographs may deserve protection, it is inappropriate for the law the presume that the subject matter of all photographs is deserving of protection.

It is possible to say with a high degree of confidence that photographs of three-dimensional objects, including artistic works, will be treated by a court as themselves original artistic works, and as such, will be subject to copyright. It is likely that a photograph (including a scan – digital scanning counts as photography for the purposes of the Copyright Designs and Patents Act 1988) of a two dimensional artistic work, such as another photograph or a painting will also be subject to copyright if a significant amount of skill, labour and judgment went into its creation.

Photography and privacy

A right to privacy exists in the UK law, as a consequence of the incorporation of the European Convention on Human Rights into domestic law through the Human Rights Act 1998

Human Rights Act 1998

The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...

. This can result in restrictions on the publication of photography.

Whether this right is caused by horizontal effect of the Human Rights Act

Human Rights Act

A human rights act is a statute that sets out individual rights and freedoms under the law. Many jurisdictions have bills of rights enshrined into law and called the "Human Rights Act". This naming convention is commonly used in Commonwealth nations...

1998 or is judicially created is a matter of some controversy. The right to privacy is protected by Article 8 of the convention. In the context of photography, it stands at odds to the Article 10 right of freedom of expression. As such, courts will consider the public interest in balancing the rights through the legal test of proportionality.

A very limited statutory right to privacy exists in the Copyright Designs and Patents Act 1988. This right is held, for example, by someone who hires a photographer to photograph their wedding. The commissioner, irrespective of any copyright which he does or does not hold in the photograph of a photograph which was commissioned for private and domestic purposes, where copyright subsists in the photograph, has the right not to have copies of the work issued to the public, the work exhibited in public or the work communicated to the public. However, this right will not be infringed if the rightholder gives permission. It will not be infringed if the photograph is incidentally included in an artistic work, film, or broadcast.

United States

Local, state, and national laws may exist pertaining to photographing or videotaping. Laws that are present may vary from one jurisdiction to the next, and may be stricter in some places and more lenient in others, so it is important to know the laws present in one's location. Typical laws in the United States are as follows:

Public property

It is generally legal to photograph or videotape anything and anyone on any public property, with some exceptions made for certain portions of military installations that have national security sensitivity.
Photographing or videotaping a tourist attraction, whether publicly or privately owned, is generally considered legal, unless explicitly prohibited by posted signs.

Private property

Photography may be prohibited or restricted within an area of property by the property owner. At the same time, a property owner generally cannot restrict the photographing of the property by individuals who are not located within the bounds of the property.
Photography on private property that is generally open to the public (e.g., a shopping mall) is usually permitted unless explicitly prohibited by posted signs. Even if no such signs are posted, the property owner or agent can ask a person to stop photographing, and if the person refuses to do so, the owner or can ask the person to leave the property. In some jurisdictions, a person who refuses to leave can be arrested for criminal trespass, and many jurisdictions recognize the common-law right to use reasonable force to remove a trespasser; a person who forcibly resists a lawful removal may be liable for battery, assault, or both.
Entry onto other private property usually requires permission from the property owner.
Some jurisdictions have laws regarding filming while in a hospital or health care facility. Where permitted, such filming may be useful in gathering evidence in cases of abuse, neglect, or malpractice.

Privacy issues

Members of the public have virtually no privacy rights when they are in public places. Basically, anyone can be photographed without consent except when they have secluded themselves in places where they have a reasonable expectation of privacy such as dressing rooms, restrooms, medical facilities, or inside a private residence. This legal standard applies regardless of the age, sex, or other attributes of the individual.

Photographing private property from within the public domain is legal, with the exception of an area that is generally regarded as private, such as a bedroom, bathroom, or hotel room. In some states, there is no definition of "private," in which case there is a general expectation of privacy
Expectation of privacy
In United States constitutional law the expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution...

. Should the subjects not attempt to conceal their private affairs, their actions immediately become public to a photographer using an average lens or video camera.

Many places have laws prohibiting photographing private areas under a person's clothing without that person's permission. This also applies to any filming of another within a public restroom or locker room. Some jurisdictions have completely banned the use of a camera phone within a restroom or locker room in order to prevent this. It is expected that all 50 states will eventually have laws pertaining to surreptitiously filming a person's genitalia. The United States enacted the Video Voyeurism Prevention Act of 2004 to punish those who intentionally capture an individual's private areas without consent, when the person knew the subject had an expectation of privacy. Additionally, state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...

laws have been passed addressing the issue as well.

Commercial photography

In certain locations, such as California State Parks, commercial photography requires a permit and sometimes proof of insurance. In places such as the city of Hermosa Beach in California
Hermosa Beach, California
Hermosa Beach is a beachfront city in Los Angeles County, California, United States. Its population was 19,506 at the 2010 census, up from 18,566 at the 2000 census....

, commercial photography on both public property and private property is subject to permit regulations and possibly also insurance requirements.
At the Chesapeake and Ohio Canal National Historical Park
Chesapeake and Ohio Canal National Historical Park
The Chesapeake and Ohio Canal National Historical Park is a United States National Historical Park located in the District of Columbia and the states of Maryland and West Virginia. The park was established as a National Monument in 1961 by President Dwight D...

, commercial photography requires a permit under certain circumstances. For photography that involves the advertising
Advertising
Advertising is a form of communication used to persuade an audience to take some action with respect to products, ideas, or services. Most commonly, the desired result is to drive consumer behavior with respect to a commercial offering, although political and ideological advertising is also common...

of a commercial product or service, or photography that involves sets
Set construction
Set construction is the process by which a set designer works in collaboration with the director of a production to create the set for a theatrical, film or television production...

or props
Theatrical property
A theatrical property, commonly referred to as a prop, is an object used on stage by actors to further the plot or story line of a theatrical production. Smaller props are referred to as "hand props". Larger props may also be set decoration, such as a chair or table. The difference between a set...

or models
Model (person)
A model , sometimes called a mannequin, is a person who is employed to display, advertise and promote commercial products or to serve as a subject of works of art....

, a permit is required. In addition, if the photography has aspects that may be disruptive to others, such as additional equipment or a significant number of personnel or the use of public areas for more than four hours, it is necessary to obtain a permit. If a photographer or related personnel need to access an area during a time when the area is normally closed, or if access to a restricted area is involved, the photography requires a permit. For commercial portrait photographers
Portrait photography
Portrait photography or portraiture is the capture by means of photography of the likeness of a person or a small group of people , in which the face and expression is predominant. The objective is to display the likeness, personality, and even the mood of the subject...

, there is a streamlined process for photography permits. In the case of National Park system
National Park Service
The National Park Service is the U.S. federal agency that manages all national parks, many national monuments, and other conservation and historical properties with various title designations...

units, commercial filming
Film industry
The film industry consists of the technological and commercial institutions of filmmaking: i.e. film production companies, film studios, cinematography, film production, screenwriting, pre-production, post production, film festivals, distribution; and actors, film directors and other film crew...

and/or audio recording requires a permit and liability insurance. Still photography
Still photography
Still photography may refer to:* unit still photographer, a person who creates still photographic images for the publicity of films and television programs* other photography producing still images...

that uses models or props for the purpose of commercial advertising requires a permit and proof of insurance.
If a photograph shows private property in such a manner that a viewer of the photograph can identify the owner of the property, the ASMP (American Society of Media Photographers, Inc.) recommends that a property release should be used if the photograph is to be used for advertising and/or commercial purposes. According to the ASMP, a property release may be a requirement in such a situation.

Other issues

Photographing accident scenes and law enforcement activities is usually legal. At the same time, one must not hinder the operations of law enforcement, medical, emergency, or security personnel by photographing in a way to show a victim's face or parts of a body.
Any filming with the intent of doing unlawful harm against a subject may be a violation of the law in itself.

Other countries

Reactions to photography differ between societies, and even where restrictions on photography are not covered by statute, code, or judicial precedent, there may be resistance to the taking of photographs by individuals or groups. The breach of the social norms can result in opprobrium, coercion, danger, and violence, and as such should be noted and respected.

Sudan

Travelers who wish to take any photographs must obtain a photography permit from the Government of Sudan, Ministry of Interior, Department of Aliens.

India

A permit is required for aerial photography in India, which normally takes over a month to acquire. Regulations apply to land-based photography for certain locations.

Iceland

Working as a photographer or calling oneself a photographer requires a masters degree in photography from the Reykjavík Technical College, or a similar degree from another industry-based school in Iceland.

External links

Bert P. Krages Attorney at Law Photographer's Rights Page Information about photographers' rights in the US
European Court of Human Rights case law factsheet on the right to one's own image
Canadian laws with regard to photography
Digital Rights Ireland » Photographer’s Rights
UK Photographers Rights
Australian street photography legal issues

The source of this article is wikipedia, the free encyclopedia. The text of this article is licensed under the GFDL.