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Photographers Rights and Responsibilities

I was once involved in a bit of a situation regarding image theft by an American band by the name of Red Jumpsuit Apparatus (read about it here). Since then I have received many emails asking questions about copyright and people in similar situations. I’ve decided to write a large FAQ post about photographers rights, both in regards to legal rights and obligations and your copyright rights and obligations. Please keep in mind that I am Australian and many of these answers will relate to Australia, I will try to include other countries if I can. I’d also like to remind you, that I am not a lawyer and it is your responsibility to research your issues on a case-by-case basis.

Can I take photos of a person without their consent?

I get asked this question a lot, yes, presuming you’re in a public place and there isn’t a reasonable expectation of privacy (public bathrooms, change rooms, etc). While it may seem odd that you can stick a camera in someones face and take a photo of them, I’d obviously advise you be a little more discreet, as you can be legally right, but nothing is stopping that person giving you a punch in the nose or smashing your camera. You are only allowed to use the image of a person if you’re not using it for a commercial purpose, it isn’t offensive, indecent or demeaning to the person and the image isn’t defamatory.

When do you need to get consent to take a photograph of someone?

There are a few very small points that you must remember when taking someones photograph, as to wether you need to ask permission:
– In a place where there is a “reasonable expectation of privacy” (change room or toilet) AND the images are of sexual nature AND they are for sexual gratification purposes.
– If you are an employer, you must have consent to film or record your employees in a workplace.
– If the persons identity is protected by a court order (eg. witness protection, child custody dispute, etc)

Can you photograph children without their parents consent?

Children are not awarded any special protection under the law, the same rules apply to both adults and children.

Can I take photos on private land?

When taking images on private land (this includes train stations, shopping centres, restaurants, etc) you must abide by the rules of the owner of that land, if they request for you to stop taking photographs, you must do so. Remember, that property having public access, like a shopping centre, does not mean it is public land.

A security guard has approached me saying I can’t take a photo of a building because of ‘copyright’, and I’m on public land, what do I do?

Simply explain to him that you are on public land, and legally you are within your rights to take a photograph of the building. Ensure you are actually on public land before arguing. No copyright act prohibits photography as photographing a building does not constitute copying.

Can police or security guards take your memory cards or ask you to delete files?

Simple answer, no, not without a court order. If a police officer has requested this, then it is likely they are misinformed about the law. Ensure you approach the situation carefully as you may be right, but police can make life difficult for you.

I took photos of a band, are they allowed to use those images?

If you are shooting on behalf of a media company and have permission to be there and you didn’t sign a release form before entering the venue, then no, the band must pay you for the use of your image(s). The only case in which they are able to use the images is if you signed a release form before shooting saying that they reserve the right to use the images taken without payment.

A company/band has used my image on their facebook page arguing that it’s not for monetary gain

This is an interesting one that I have discussed with many people. In my view, any facebook page for a company or band is there for promotional purposes. If Coca-Cola posted a picture of one of their drink products, that’s considered advertising right? Why wouldn’t an image of a band member also be considered advertising to buy tickets to their show? Many photographers are happy to allow bands to share their images, presuming they’ve given you credit. You need to think about this one on a case-by-case basis as to whether you’re happy with the resulting publicity or not.

I’ve uploaded an image of a person/artist/company on social media, are they allowed to re-upload my image and use it?

Firstly, you need to determine whether it’s for a commercial purpose or not, if it’s a friend using it as a profile picture, then no, you can’t fight it. If it is being used by a company or artist to promote their product or service, then yes, you are entitled to financial compensation, if you feel you should pursue it. Essentially, if you do not want your images shared on taken from social media, don’t upload them.

Someone has used one of my images without permission, what should I do?

If you are absolutely positive that they have no legal claim over your image, then you should contact them privately via email or phone, to inform them of the infringement. You must remember that often people are unaware that they may have infringed on copyright, many people are ignorant to the laws surrounding this. Approach them in a very calm and professional manner, perhaps something like the following: “Not sure if you guys are aware, but you’ve used one of my images without permission, could you please remove it? If you could ask permission next time that’d be great”. Depending on their response you, that may be the end of it, if they do however begin to argue with you, you need to know your rights and explain to them what they have done is illegal and you may consider writing a cease and desist letter.

A client provided my images to a third party, what do I do?

If you’ve done work for a client, say a fashion agency, and they’ve then provided those images to other companies, say the clothing manufacturer, can I / should I fight it? This is a tricky one that has a lot of if’s and but’s attached. Firstly, you need to go back and look at your arrangement with the client, have you agreed to or signed anything allowing them to do this? Have you specified that only they are allowed to use the images? Are you sure the company is a third party and not owned by the client? Often if it hasn’t been discussed or agreed upon prior to providing or shooting the images, it’s difficult to fight and you may loose that relationship with the client. You always need to outline where and how your images are to be used prior to taking the job. This is something you often need to learn from and move on and ensure you do next time. If you are likely to get more work from the client, then I’d let it go and make sure you specify next time around.

If you have signed an agreement that says they are no allowed to provide the images, then consider emailing the client informing them that what they did was in breach of your agreement. Once again, you need to think about whether this is worth your while and do you want to keep a good relationship with the client.

I posted a photograph to a company social media page, and they’ve shared my image without credit

This is something that is happening more and more. You need to go to the about me section of the page and ensure there’s no terms and conditions that says something along the lines of “We reserve the right to post any images that are shared on this social media page”. Many companies, including Destination NSW, are known to do this.

Someone is using my image and claim they’re allowed as it features their brand

Many assumptions are made when it comes to branding/image, people and companies assume that because an image features their brand, they’re free to use the image as they see fit, this is not the case. As long as the image was not created for the company who owns the brand and you still retain the copyright to the image, the company/person must pay for the use of the image (presuming it’s for a commercial purpose).

Someone has posted my images to social media without my permission, how do I get it taken down?

The easiest and most direct route is to file a DMCA copyright takedown notice, I know this sounds serious and tricky, but most, if not all, major social media sites have a form you can fill out. The form generally consists of: Your details, a link to the image that you want removed, a link to the original (on your website, flickr, facebook, etc) and any other details. Essentially the social media site needs proof that you do indeed own the image. In every case that I’ve issued a DMCA takedown, the images have been removed within 24 hours, this includes high-profile accounts like Miley Cyrus’ instagram account. Below is a list of sites and links to their DMCA takedown forms.

Facebook
Instagram
Tumblr
Twitter & Vine
Pinterest
Google (Google+, Google Ad, etc)
Linkedin

Do you have any questions I haven’t answered? Feel free to email be at rohan@raphotography.com.au, I will continue to add to this page over the next few weeks.

I’d like to thank 4020.net for help with answering some of these questions. You can find them here: http://photorights.4020.net/

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Posted: June 6, 2014

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