The Business of Photography

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The Business of Photography

Photography in Public Places

The following advice is specific to Australia. Most Western countries have similar structures and the broad principles are similar. However, you should consult your own advisers for specific information. 

One of the benefits of membership of organisations like the AIPP and ACMP is that members share information and experiences which can benefit everyone. Sometimes the information is a new technique, sometimes it's a challenging experience which, hopefully, can be avoided by others in the future.

South Australian photographer Milton Wordley, a regular contributor to The Working Pro over the years, contacted me recently with a legal issue that affected him.

"Last year I photographed a lake in Queensland for a client and the photo was used in various displays and on a billboard. In the photo, there is a woman walking her dog. She knew I was there at the time, but she didn't say anything.

"Shortly after the photo was used, she contacted my client and demanded a sum of money. The woman is a very small part of the image and her back is to the camera.

"Her argument was that I did not ask her permission to take the photo and, although she could not be recognised, people knew her dog." For personal reasons, the use of the image had caused her distress.

Although neither Milton nor the client had done anything wrong, Milton's client was now looking at some serious legal fees in order to defend their position, plus the possibility of having to pull the advertising campaign. From their perspective, they weren't interested in the legal niceties of the case, they just wanted the problem to go away without any further disruption to their business.

Milton agreed that it shouldn't be his client's problem, so he took it on board and contacted the AIPP for help. The AIPP in turn put him in touch with John Sinisgalli of Trumble Szanto Lawyers in Melbourne who was able to show that the woman didn't have a case and that the client did not have to pay her.

Legal Letter

Within the letter provided by John Sinisgalli, the following excerpts make interesting reading and are reproduced with permission:


"We note that... the person's face is not displayed and the person is not the central subject of the photo.


"The law of Australia does not recognise a general right to privacy in photographic images. The fact that there is no common law right to privacy was determined by the High Court of Australia in Victoria Park Racing & Recreation Ground Co Ltd v. Taylor, a case determined in 1936.

"The High Court of Australia has dealt with issues of rights to images more recently in The Australian Broadcasting Corporation v. Lenah Game Meats Pty Ltd (2001). Whilst there was some discussion in that case of a potential right of privacy in images improperly obtained, the Court did not extend such discussion to a right of privacy for photographs taken in a public place.

"There are certain instances in which a person's image is protected. For instance, a photographer must not publish photographs in a context which would be defamatory to the reputation of the subject of the photograph.

"A photographer must also not publish a photograph in a way in which the subject of the photograph suffers unwanted exploitation of that person's reputation. Such restriction usually applies to the use of photographs of celebrities in a way in which the celebrity would not agree to such use, including promotion of a particular product. This would not appear to be relevant to the complaint made by [the woman]."


John finished his letter with the conclusion that the woman had no legal basis for objection, but that as a practical consideration, Milton's client may still wish to enter a separate ‘commercial arrangement' in order to appease her concerns.


The Outcome

There's no doubt the public perception of photography and photographers' rights has changed over the year. Explained Milton, "Ten or fifteen years ago if I was shooting for a property group or a council, I could go into a park or a playground and take photos of whoever was there, but these days I have to take my own talent with me. And if we're working with children, there's even more red tape."

In this situation, the woman obviously saw an opportunity and went for it. It appears she wasn't interested in the legalities, just the money. And nor was the client interested in upholding the law or the rights of photographers. Even with the legal opinion, the client pulled the photo so the woman would stop harassing them.

"Legally, the onus is on our clients, not on us. We're not breaking any rules by taking the photos, and our client might not be breaking any rules by using them. However, as professionals it's up to us to help our clients avoid these types of situations."

Milton says he might follow Greg Hocking's suggestion, which Greg in turn says he took from the film industry. Greg has a small sign he attaches to his tripod (or near where he is shooting), warning people that he is a professional photographer, that he's taking photographs and if they don't want to be in the photo, either let him know or walk somewhere else. It also stops a lot of people walking up to him to ask what he is doing (because we all know that terrorists case buildings with a tripod and camera).

Milton also says he uses a DL size ‘Release Form' which he keeps as a pad. "If I photograph anyone, I first ask if they mind and then if they would sign my release form. The form makes no mention of talent or money, it simply gives me permission to take a photo and have it used."

The form is titled a ‘Release Form', not a model release form. It has room to write the date, name or property, address, phone number and special conditions. There's also room for the job name, photographer's name and a witness's signature.

On the form are two paragraphs: "I give permission for my photograph to be taken and reproduced without restriction. I have read and understood this release form." The other paragraph states: "These photographs may be reproduced in various communication mediums and may be submitted to a photo library. I understand and accept that the photographer may have no control over the use of the photographs by a third party and that I do not have an interest in the copyright of the images, nor shall I receive any further consideration."

The form comes in duplicate, spiral bound pads of 35 forms (i.e. 70 sheets) and fits in a camera bag. "I got sick of clients giving me A4 sheets with too much info on them. I use this with street talent and people who are recognisable in public spaces."

Some lawyers may question the validity of such a release form unless the photographer pays something to the subject or the property owner in return. However, Milton points out that the form alerts people to what he is doing and, in signing the form, they agree they have no further rights, in which case problems such as this one may never arise.

John Sinisgalli and Trumble Szanto Lawyers can be contacted at www.tsz.com.au.

The information in this article is general in nature and should not replace personal advice given by your own legal and financial advisers.

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