People in public places
In Australia, the general rule is that you are permitted to take a photo of anyone if you are legally in a public place. While ordinary members of the public may come up and tell you that you have no right to snap their image, as the law stands, this is not the case. This is because, contrary to what many people think, there is no right to privacy that protects a person’s image from being taken. As Justice Dowd stated in the NSW Supreme Court, ‘a person, in our society, does not have the right not to be photographed.’ Existing privacy laws in Australia are more concerned with storage and management of personal information and tend to apply in a business context. In any event, common courtesy should not be ignored.
This photograph above taken by Chris Scott has been taken in a public place and no permit was required. Source: Supplied
Photographers should tell people that they are about to shoot and allow them the opportunity to step out of the frame. Some photographers have what they call the ‘knuckle rule’ – basically if the person looks aggressive and the photographer thinks that they may get punched in the face, it’s not worth the hassle.
Having said this, it’s important to remember that there are many public places which restrict the taking of photographs – so you always need to check. It is one thing to take a happy snap in a social context, but quite another if you, as a professional photographer, are clicking away (especially if there is a tripod in sight). This is also where model releases can come in handy – many photographers even carry them around, but that is a topic for another day.
Let’s look at an example
Case study: Girl’s image used without permission for mobile phone campaign
In 2007, a Texas family sued Virgin Mobile USA, when they became aware that an image of their sixteen-year-old daughter, Alison Chang, posted on Flickr, had been used in an advertising campaign by Virgin Mobile Australia. The ads featuring the girl’s face appeared on billboards, websites and newspapers. She was captured standing in front of a church, making a two-fingered ‘peace’ sign, and was superimposed with slogans that read, ‘Dump your pen friend’ and ‘Free text Virgin to Virgin’.
At the time of the incident, Flickr had a policy in place requiring users to select how they wanted their photos to be used.
The photographer who had uploaded the image had done so pursuant to a creative commons license which permitted anyone to use it for commercial purposes. Chang argued licence or no licence, the mobile phone company should have sought permission first. Not many would argue with that, yet Virgin Mobile got away with it purely on technical grounds.
Ultimately, the Texas District Court dismissed the family’s case, holding that Virgin Mobile had not intended its Australian campaign to reach Texas in the first place. The company had only used the photograph in Australia where it was authorised to sell its products and services. Because there was a lack of connection between the use of the photo in Australia, and proceedings in Texas, the case was dismissed. However, had the family resided in Australia, the result may have played out quite differently, as people may have assumed the girl’s family had consented.
The message is this; if you are going to use someone’s image commercially, get permission or risk facing negative publicity and, possibly, having to deal with the wrath of the law.
Wrap up
The law relating to public spaces and photography is by no means black and white. However, on the plus side, it’s often not too difficult to find out what the rules are for any particular public space. Sometimes the rules can be worded in a way which may seem unclear. In these situations, don’t take risks: contact the relevant authority in question to ensure that once onsite, you don’t encounter embarrassing situations which could have been avoided.
If you’re approached while taking photographs:
have your permit on hand;
avoid arguments;
and know your rights.
The final lesson to keep in mind is that in the context of taking photographs in public places, the opposite of the old adage holds true: It’s better to ask for permission than to ask for forgiveness!
Disclaimer: The contents of this article are of a general nature only and must not be relied upon as a substitute for tailored legal advice.
About the writer: Sharon Givoni is an intellectual property lawyer who runs her own legal practise Sharon Givoni Consulting. She acts for photographers and other creative people in business and can be contacted by email (sharon@iplegal.com.au) or call (03) 9527 1334 or on 0410 557 907. Her website is located at http://www.sharongivoni.com.au.