The Sanchovi

Street photographers rights (Australia)

Posted in Photography by sanchovi on 01/01/2010

The good people over at ARTS LAW CENTRE OF AUSTRALIA ONLINE have got you covered when it comes to the boring legal side of street photography rights.
I think ‘use common sense’ should be rule #1.
Rule #2 should be:

  • “When you’re in a foreign country and a guy with a shotgun asks you to stop taking photos, you should stop taking photos… until he’s gone.”

Here are ‘the rules’ for Australia but we all know why rules were made. Go make yourself a Milo if you intent to read the whole thing. I’m waiting for the movie version to be released. I hear Jason Statham is rumored for the lead role.

ENJOY!

Street Photographers Rights

Can I take a photograph in public that contains images of people I don’t know?

Can I take a photo of a famous landmark or of the front of someone’s house and

later sell it?

This information sheet aims to provide you with the answers to these and other questions

that may arise when you are taking photographs in and of public spaces. It also aims to

provide those you encounter with a statement of your rights to minimise the possibility of

harassment or threatened legal action. So carry this in your pocket and be prepared.

Taking photographs in a public place

It is generally possible to take photographs in a public place without asking permission.

This extends to taking photographs of buildings, sites and people. There are, however,

some limitations.

Photographing people

There are no publicity or personality rights in Australia, and there is no right to privacy that

protects a person’s image. Existing privacy laws are more concerned with storage and

management of personal information and are of limited relevance to the present issue.

There is also currently no tort of invasion of privacy in Australia, but in ABC v Lenah Game

Meats (2001) the High Court did not exclude the possibility that a tort of unjustified invasion

of privacy may be established in the future. Based on this view, the Queensland District

Court found in Grosse v Purvis (2003) that a tort of invasion of privacy had been made out

on the facts and awarded the plaintiff damages. However, this case concerned a long

history of harassment over many years and has limited application. As a result, taking

photographs of people in public places is generally permitted.

Photographing people for a commercial purpose

If you are using your shots for a commercial purpose, such as for an advertising campaign,

you should obtain a model release form signed by the subjects you are photographing to

ensure you have authorisation to use their image to sell a product. See the Arts Law

information sheet “Unauthorised Use of Your Image” for further information on defamation,

passing off and trade practices law. A sample photographer’s model release form is also

available on the Arts Law Centre of Australia website.

Photographing people on private property

There is no restriction on taking photographs of people on private property from public

property. According to Victoria Park Racing and Recreation Grounds Co Ltd v Taylor

(1937) there is no freedom from view, so people who are photographed on their property

from a public location have no legal claim against you if what is captured in the photograph

can be seen from the street. The same applies to photographs taken from private land

when you have permission to take photographs. You should be careful that you are not

being a nuisance and interfering with someone’s right to use and enjoy the land (see the

case of Bathurst City Council v Saban (1985)).

Can taking photos be a criminal offence?

The Summary Offences Act 1988 (NSW) outlines a number of circumstances where a

person’s privacy must be respected. For example, it is an offence punishable by a fine or

imprisonment to photograph a person to provide sexual arousal or gratification if the person

is undressed or engaged in a private act in circumstances where a reasonable person

would reasonably expect to be afforded privacy, and he or she has not consented to being

filmed. A private act includes using the toilet, bathing and engaging in sexual activities not

ordinarily done in public. Similarly, the Surveillance Devices Act 1999 (Vic) and

Surveillance Devices Act 1998 (WA) make it an offence to photograph a “private activity”

without the consent of the subject.

The Crimes Act 1900 (NSW) also makes it an offence punishable with imprisonment to be

in or near a building with intent to peep or pry upon another person. It is also an offence to

stalk a person with the intention to cause fear of physical or mental harm. In serious cases,

this may lead to an application for an apprehended violence order (AVO).

Also be aware that any photography construed as child pornography can result in criminal

charges. For example, the Criminal Code 1899 (Qld) makes it an offence to take any

“indecent” photograph of a child under the age of 16 without legitimate reason. You could

face significant jail time, especially if the child is under 12. Similar provisions apply under

the Criminal Code (NT), Criminal Code 1913 (WA), and the Criminal Law Consolidation Act

1935 (SA).

Photography of landmarks, buildings, monuments

There are provisions in the Copyright Act 1968 (Cth) that allow people to take and publish

photographs of buildings, models of buildings, sculptures and other works of artistic

craftsmanship without infringing copyright. See below for more detail.

However, photography is restricted in some areas by local councils or authorities. For

example, the Sydney Harbour Foreshore Authority Regulation 2006 (NSW) prohibits a

person from using a camera for a commercial purpose in a “public area” without the

Authority’s permission. This applies to any part of the foreshore area that is vested in or

managed by the Authority and the public can use, including Darling Harbour, Circular Quay,

the Rocks and Luna Park. Non-compliance can result in a fine. A person who causes

annoyance or inconvenience to other persons in a public area must leave the area when

requested by a ranger or a police officer, who may remove the person with reasonable

force if they fail to do so. Provided the ranger has warned you that failure to comply with the

request is an offence, you can face a fine. For more details, contact the Sydney Foreshore

Authority (http://www.shfa.nsw.gov.au).

Similar provisions and penalties exist for Sydney Olympic Park, prohibiting the use for

commercial purposes of a camera and causing annoyance or inconvenience to other

persons (Sydney Olympic Park Regulation 2001). Furthermore, an authorised person may

confiscate a camera used in contravention of the Regulation if he or she has directed you

to stop using it and you continue nonetheless, although force cannot be used. If your

camera is confiscated, you should be issued a receipt indicating the date and time when it

was taken. It must be returned to you or delivered to a public pound within 24 hours after

confiscation. If delivered to a public pound, you must be notified in writing of the address.

Also keep in mind that you must abide by the admission conditions on the entry ticket to

events and sports grounds, including Telstra Stadium, Sydney Showground, Sydney

SuperDome, Sydney Olympic Park Aquatic Centre. For more details, contact the Sydney

Olympic Park (http://www.sydneyolympicpark.com.au).

Other penalties and provisions may exist for other areas in other States and Territories.

Restrictions may also be imposed by Local Councils on premises under their control, such

as swimming pools. Following public concern and outrage due to “incidents” involving the

photography of unwilling bathers on beaches, Councils were prompted to prohibit

photography in these and similar areas. For example, you need a permit to commercially

photograph any outdoor, publicly-owned space in Waverley, including beaches, parks,

streets and cemeteries. It is therefore advisable to check with the Local Council whether

there are restrictions on photography, however most restrictions seems to apply to

commercial photography.

Government property

It is illegal to enter certain property belonging to the government such as railway yards,

electrical power stations and military bases. Trespassing in these areas may lead to arrest

and prosecution. For example, under the Defence (Special Undertakings) Act 1952 (Cth) it

is an offence to gain unlawful entry into a “prohibited area” (including flying over it),

punishable by imprisonment. The Minister can declare any area of land or water

“prohibited” if it is necessary for Commonwealth defence. The same applies for taking a

photograph of the area or anything in it. Merely possessing a camera while in a “prohibited

area” can also result in imprisonment. Four Christian Pacifist activists were prosecuted

under this Act for trespassing on the US Pine Gap military base in Australia and taking

photographs in October 2006.

It is also illegal to photograph any defence installation in Australia under the Defence Act

1903 (Cth). Your photos, camera and film can be confiscated and destroyed, and you can

face potential fines or imprisonment. You can even be arrested without a warrant. Always

obey any warning signs displayed at such locations as you can be penalised even if you

haven’t taken any photos, but have photography equipment in your possession.

If you are in doubt about a particular location, always check.

Photographing number plates

A number of photographers have asked Arts Law whether it is illegal to photograph car

number plates on the street. While State and Commonwealth legislation permits police and

roads authorities to use various Automatic Number Plate Recognition systems (like Safe-T-

Cam) to monitor criminal activity such as speeding, the law does not prevent photography

of car number plates.

You and the Police

Some photographers have been approached by the police while on the street taking

photographs. The police may ask you to identify yourself. Generally, you do not have to

comply, but there are some exceptions:

• where you are in lawful custody, or the police suspect on reasonable grounds that you

may assist in the investigation of an indictable offence (Law Enforcement (Powers and

Responsibilities) Act 2002 (NSW)); or

• where you are at the Sydney Olympic Park and are suspected on reasonable grounds

of an offence against the Sydney Olympic Park Regulation 2001 (NSW). In this case,

failure to comply is an offence only if you are first warned that such failure is an offence.

Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), the police do

not have powers to stop, search and detain you without a warrant unless they suspect on

reasonable grounds that:

• you have in your possession or under your control anything stolen or unlawfully

obtained, or to be used in connection with the commission of a relevant offence; or

• you have in your possession or under your control in a public place a dangerous article

that is being or was used in connection with the commission of a relevant offence.

For similar provisions in other states, see Police Powers and Responsibilities Act 2000

(Qld), Crimes (Custody and Investigations) Act 1988 (Vic) and Police Administration Act

2006 (NT). Do not forget the special powers that police and other authorised persons (such

as rangers) may have in certain areas, as discussed above.

Obstruction and Public Order Offences

Setting up a tripod on a busy street and thereby impeding traffic is an example of an action

that may amount to public obstruction. The Summary Offences Act 1988 (NSW) provides

that it is an offence to prevent in any manner the free passage of a person, vehicle or

vessel in a public place without reasonable excuse. Police have powers to arrest any

person obstructing a public thoroughfare, although it is more likely that you would be asked

to move on, and only arrested if you disobey.  Police have powers to give a person in a

public place reasonable directions if they believe on reasonable grounds that his or her

behaviour or presence is obstructing another person or traffic, or constitutes harassment or

intimidation of another person (Law Enforcement (Powers and Responsibilities) Act 2002

(NSW)). Failure to comply may be an offence punishable by a fine.

For similar provisions in other states, see Summary Offences Act 2005 (Qld), Summary

Offences Act 2007 (NT), Summary Offences Act 1953 (SA), Summary Offences Act 1966

(Vic) and Criminal Code Act 1924 (Tas).

Photography and the Arts

Sculptures, monuments and artwork may be protected by copyright. Unless an exception

applies, you need permission from the copyright owner of the work. Exceptions to this

general rule are found in the Copyright Act. For example, photographing and publishing a

photograph of a sculpture or work of artistic craftsmanship that is permanently situated in a

public place, or in premises open to the public, does not infringe copyright (s 65). This does

not apply to other public art, such as murals. If the public place is a gallery or museum,

remember that your rights to photograph may be limited by the conditions of admission on

your ticket. As previously discussed, you can also take pictures of buildings without

infringing copyright.

Private Land

In order to access a privately owned space you need permission from the landowner, and

he or she has the right to impose restrictions on photography. Therefore, you may only be

allowed to photograph certain objects or locations. This type or restriction is common in

many museums, galleries and sporting grounds, and may occur on land owned by

Councils. Even where the landowner allows you to photograph, keep in mind that he or she

may not be the copyright owner in artistic works you might be photographing. In this case,

you need the permission of the author of the artwork as well.

If you do not have permission to be on privately owned property, you will be liable in

trespass. Trespass is committed with the slightest interference with the land (damage to the

land is not relevant). The owner may take legal action in trespass against you for taking

photographs after gaining unauthorised entry (Lincoln Hunt v Willesee (1986)) or may be

able to get an injunction to stop you using whatever footage you gathered while trespassing

(ABC v Lenah Game Meats (2001)). The landowner may use reasonable force to remove

you from their land.

Wildlife and National Parks

The Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) includes

provisions restricting the taking and use for commercial purposes of photographs in

Commonwealth Reserves, including Kakadu National Park, Australian National Botanic

Gardens, Christmas Island National Park, Norfolk Island National Park, Commonwealth

Marine Parks and Reserves. To take photographs for commercial purposes in a

Commonwealth Reserve, you should contact the reserve for a permit. Conditions may be

imposed on the taking of the photographs. If in breach of the limitations, you may be fined

and required to surrender all copies of the photographs and the camera used to take them.

For further information contact the relevant Commonwealth Reserve.

Use/publication of photographs

Now that you have taken your photographs you need to be aware that their use or

publication may also be illegal when carried out in a certain fashion. For example, the

subject of a photograph may seek an injunction to stop the publication of photographs that

are indecent, offensive or demeaning (Lincoln Hunt Australia v Willesee (1986) 4 NSWLR

456).

Defamation

Defamation is the law that deals with injury to someone’s reputation. The unauthorised use

of the photographs would need to lower the public’s estimation of the person portrayed,

expose the person to hatred, contempt or ridicule, or cause him or her to be shunned or

avoided. The unauthorised publication of the photograph in itself is not proof of defamation.

Since defamation deals with reputation, the likelihood of an action in defamation will be

higher the more famous the person photographed.

For a more detailed discussion, see the Arts Law information sheet “Defamation”.

The law of passing off and the Trade Practices Act

Complications arise if your photographs are used for a “commercial purpose” and you don’t

have consent from the persons in the photograph. “Commercial purpose” involves using the

photograph to sell something other than the photograph itself. So if you have taken a photo

of someone on the street for an advertising campaign and it appears that the person is

endorsing the product or service (when in fact they do not), you may be liable.

For a more detailed discussion, see the Arts Law information sheet “Unauthorised Use of

Your Image”.

Photographs relating to Court proceedings

Photography in courts is restricted. The law of contempt of court also generally prohibits the

publishing of any material, written or photographic, that is likely to prejudice the course of

justice in a matter which is still before the courts. For example, in Attorney-General for the

State of NSW v X (2000) the Sydney Morning Herald published an expose on organised

crime, claiming that Mr Duong was “the top heroin distributor” and mentioned pending

criminal charges against him. The Court of Appeal held that the article amounted to

contempt of court because it implied Mr Duong was guilty. In coming to this decision, the

judges were guided by the fact that the article was accompanied by two photos of Duong,

each of which were “unusually large, in colour and of good quality”.

Copyright and Trademarks

You may be infringing copyright if you photograph the whole or a substantial part of a

literary, musical, dramatic or artistic work, if the work is still protected by copyright. For

further information on copyright, see the Australian Copyright Council information sheets at

http://www.copyright.org.au.

Photographers are often concerned about taking photographs of trade marks, for example

taking a shot of a streetscape that contains advertising or company logos on the side of

buildings. A registered trade mark owner has exclusive rights to use the trade mark and to

authorise use of the trade mark in relation to goods/services for which the trade mark is

registered. Taking a photograph of a trade mark should not involve trade mark use and is

not trade mark infringement. Also consider that there may be copyright subsisting in the

trade mark if it is a logo containing an artistic work.

Conclusion

For further information on any of these issues please contact Arts Law on (02) 9356 2566.

Disclaimer

This information is intended as a guide only. It does not replace legal advice obtained from

a legal practitioner. The information was correct at the time of writing but the author takes

no responsibility for changes in the law since that time.

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