Information Sources on Photography Legal Issues
Photographer’s Rights Clouded Misinformation And Urban Myths
Nov 14, 2009
Aspiring professional photographers seeking information on their legal rights and obligations over taking and using their images need to be careful where they get their legal information.
Popular media often seeks to sensationalize and fan moral panic about notions of privacy in public places. Well-meaning writers lacking proper journalistic training in media law help propagate urban myths about privacy while confusing editorial and commercial uses of photography.
Mass Media Advice
Unfortunately, the information presented in the popular media can be misleading. Despite the assumption that large professional media publishers and leading capital city daily newspapers should have trained professional journalists with access to legal advice on media law, they are not always reliable sources of information on the legal aspects of photography.
For example, the Hobart Mercury, a state capital city daily belonging to Rupert Murdoch’s Washington DC based News Limited, has trouble getting it right.
This year they presented a series of stories on the publication of security camera images implying the subjects were shoplifters. The underlying theme of the Mercury’s coverage related to this as an invasion of privacy. The series seemed to run out of steam when the reporter interviewed a prominent left leaning civil libertarian, and often controversial, guest columnist for the paper. Unfortunately, for the journalist, the gentleman is a lawyer, and he correctly debunked the Mercury’s angle when he said it was not covered by privacy legislation, but there were good grounds for a defamation action.
Another more recent example from the same newspaper is a story about a display of old photographs salvaged from garbage dumps. The Mercury story said only photos taken before the 1960s were on display because of privacy laws. Once again, this is wrong and the real reason lies in the applicable local Copyright law, where photographs lose their protection after fifty years, hence photos taken before the 1960’s are now clear of copyright protection and could be displayed or published without the photographer’s consent.
Professional Training
One contributing factor to urban myths perpetuated in the media about photographer’s rights is the ignorance of writers who lack proper professional training at accredited educational institutions. Universities that include compulsory study of media law run by their school of law as part of a Journalism major provides the essential legal background to understand the legal implications of their writing.
Precision in language about legal matters and variations in applicable laws is important. Especially across national borders and where countries are federations and there is conflict between state and federal laws. Even the law itself can be difficult for trained professionals as situations can present unique interpretations that can go as far as the Supreme Court to make the definitive interpretation of what the law means.
Commercial Use Myths
A common misconception is that making money from the sale of photography means it is commercial use of the image. This is completely wrong as the meaning of commercial use of images relates to their use to sell other unrelated predicts as such as advertising or sale of shirts by printing the image on the shirt.
Selling images as part of something that conveys information, such as editorial use, or alone as works of fine art, then even though the creator of the image makes money from selling the image it is not commercial use of the image.
Freedom of the Press
This is often mistakenly confused with freedom of expression. People commonly accept the right of large media organizations to claim the right of editorial usage for images as somehow different for Internet or newsletter publishers. This ignores the true origins of the principal of freedom of the press. This originated at the birth of newspapers in the seventeenth century where the state sought to control the flow of information by restricting the right of individuals to print and publish newspapers.
Early printing presses had very limited capacity compared to today’s modern monsters and completely lacked the coverage of the World Wide Web. Victory in this battle and in democracies anybody has the freedom to buy a printing press and publish newspapers without approval from the state. The modern equivalent is the blog, where individuals once again have the power to publish their own thoughts, views, or news on whatever aspect of their word they choose as editorial content.
This is not an interpretation likely championed in traditional mass media, as the web looms as a major threat to existing media empires. This principle is often erroneously considered the same as to freedom of speech; an essential part of public discussion in healthy democracy.
The foundations of many democratic principles came in a time before advent of modern photography and its impact via modern electronic media. Photography is still a form of “speech” because it conveys ideas as part of discussions in the democratic process.
Limitations on Publication
Although the preceding arguments suggests a license to publish whatever you want there are limitations on the right of free speech, it is not absolute.
One of the limitations often misunderstood and overstated, sometimes deliberately, or through ignorance, is privacy. Many democracies have privacy laws but they usually relate to confidentiality of personal information, not to a person’s image. There are restrictions on photography where people have “a reasonable expectation of privacy” as a key principle.
These areas are covered in more detail in Taking photographs and the law and the companion article Using photographs and the law.
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