The Legal Facts - Where can you take photos and who can you take photos of?

[Ford Kristo]

* REMOVED: Members with under 30 days membership and 50 posts cannot complain about people/companies/services/products on Ausphotography : Admin * I found the linked article more than illuminating. It is written by Andrew Nemeth; a lawyer who is a photographer and deals specifically with Australian legislation. It offers a comprehensive and thorough examination that is generously littered with relevant links for aspiring Cleaver Greene types.

Careful, you may like what you read.

The article discussion on a mooted Commonwealth "bill of rights" poses some interesting questions in relation to the possible future rights of the photographer to shoot in public places. The article examines the legal position at specific locations and situations eg Sydney Harbour, the mall, railway stations, assaulting photographers, etc.

http://www.4020.net/words/photorights.php

[ricktas]

A reminder to all members : SITE RULE:

[24] Requesting/Providing Financial, Medical or Legal Advice on Ausphotography:

Australian Photography is a website with broad topic coverage. However, when it comes to medical, financial and legal advice, it's always recommended to seek advice from a qualified professional, rather than asking about it on Australian Photography. As such, Australian Photography takes no legal responsibility for posts seeking or providing Medical, Financial or Legal advice. Members use any advice provided via Ausphotography at their own risk. The site owner, moderators or members cannot be held liable for any Medical, Financial or Legal advice posted on the site.

So discuss this as you wish, but you cannot take/accept any advice posted to Ausphotography as being correct.

[Erin]

Actually quite an interesting read. Thanks for the link.

[Longshots]

I dont want to be a spoil sport, as I certainly support Andrew's site, who provides a great deal of great information.

A lot of it very specific to NSW

The other important part is that Andrew is quite upfront about the fact that he's NOT a practising lawyer or photographer. Yes he's a qualified lawyer, and he provides his CV which details the brief time he that he actually practised law. With no disrespect to Andrew, he's an excellent lobbyist and voice to explain law and photography, with the specifics of NSW law; but there is an often repeated point that the advice he offers are considered "the facts", when they should be considered more of a good guide. Its an important difference.

[kiwi]

Quite right William. On the other hand where his "facts" have not been accurate he's updated accordingly and I don't know of many discrepancies, are there ?

[Longshots]

Again as we're always talking about law, which is interpreted so hence my suggestion that its considered a guide. I'm not saying that Andrew is wrong on any issue, but stressing that in most cases, when talking about law, its a guide - and Andrew gives some excellent information - I'm not questioning that or him, or considering if there are any discrepencies - I fully support his commitment - simply that the information is a guide and not looked upon as "fact".

[kazdez]

For those in QLD interested in doing rail photography, the QR Rail have put out a guideline pdf which can be found at the following web address.

http://www.queenslandrail.com.au/AllStations/Documents/queenlsand-rail_rail-enthusiasta-amatuer-photography-access-guidelines-2011.pdf

Our camera club has Trains as a subject soon, and this helped to clear up the legalities for us.

Karen

[ricktas]

Whilst not state based, the Copyright Act also contains a clause related to photographing people in public

Excerpt from : Photographers & Copyright INFORMATION SHEET G011v14 : January 2006

Do I need permission from people I photograph?

A personʼs image is not protected by copyright. However, in some cases, using a personʼs image
without permission may be prevented under other laws, such as the law of passing off, the Trade
Practices Act 1974 and State and Territory fair trading laws. These areas of law concern conduct
which may mislead or deceive the public and may particularly come into play if the photograph you
are taking is of a well-known person, and is to be used, for example, as a poster or as a postcard
or in advertising. In some cases, uses of photographs may be defamatory of people in them.

If you are commissioned to take photographs, it should not generally be your job to check these
issues. However, it may be a good idea to alert clients to the fact that they may need to seek
advice from a solicitor with the relevant expertise (note that the Copyright Council does not advise
on these other areas of law).

Generally, if you have asked somebody to sit for you, itʼs a good idea to get a “model release” from
that person so you wonʼt have to worry later about whether or not your use of resulting photos will
raise issues under areas of law such as passing off or the Trade Practices Act. (For a sample
photographer's model release, with explanatory notes, see the Arts Law Centre of Australia
website http://www.artslaw.com.au).

In other cases, photographers may take more casual shots—for example, photographs of people in
the street or at markets, or playing sports. If you know that you might later be using such a
photograph commercially, itʼs generally a good idea to get a model release from the people you
have photographed. If itʼs impractical to get the people in your shots to sign model releases, or if
they refuse to do so, your ability to use or license the use of the photograph in certain ways might
be limited because of the laws discussed above.

Privacy
It is generally not an invasion of privacy to take another personʼs photograph. However, in some
circumstances, you may be required to comply with the National Privacy Principles in the Privacy
Act 1992 (Cth).

[campo]

the information is a guide and not looked upon as "fact"

A little OT, but have you ever noticed that everywhere you go these days, nobody takes responsibility for advice and even when you do pay for it you still have to sign a disclaimer saying it might be wrong (eg. lawyers/accountants)? Sometimes it's like there is no "fact".

When it comes top photography both the 4020 site & the copyright council do provide some pretty good ideas on what is and isn't permissible. For me I always put myself in the shoes of a potential subject in a shot and ask myself "would i want to be in the picture?".

[Longshots]

A little OT, but have you ever noticed that everywhere you go these days, nobody takes responsibility for advice and even when you do pay for it you still have to sign a disclaimer saying it might be wrong (eg. lawyers/accountants)? Sometimes it's like there is no "fact".

When it comes top photography both the 4020 site & the copyright council do provide some pretty good ideas on what is and isn't permissible. For me I always put myself in the shoes of a potential subject in a shot and ask myself "would i want to be in the picture?".

Very good point Campo


The reality though is that, as I've said before, there is NO fact anyway, its always an interpretation of the written word. But I agree with you and share your cyniscm that even when you do pay someone, there is a disclaimer somewhere in the experience.

Another point - Copyright Council is an official organisation with a great deal of professional experience - 4020 is an interest by the owner of the website - major difference.

[Kym]

Going a bit further off topic...
nobody takes responsibility for advice and even when you do pay for it you still have to sign a disclaimer saying it might be wrong (eg. lawyers/accountants)? .

Blame our litigious society for that. Fed by US shows going back to LA Law, Boston Legal etc.
Everybody wants to make someone else responsible and sue at the drop of a hat.
No one takes personal responsibility or realised sh-- stuff happens.

Even in Qld some want to sue the Qld Govt for not letting water our of Wivenhoe earlier.
Damned if you do and damned if you don't (pun intended)

Advice is given on a best effort basis and may in fact be wrong, so professionals have to have disclaimers to limit their liability.
Eg. my financial adviser advised to buy into X and Y, one went really well the other was flat.
Should I sue him because investment Y did not go as well as expected?
X on the other hand exceeded expectations, should I sue because it did not perform as expected :D :D :D

So for photographers maybe contracts need disclaimers about 'best effort' etc. (i.e. if you don't like the result you cant sue us).

[Xenedis]

When it comes top photography both the 4020 site & the copyright council do provide some pretty good ideas on what is and isn't permissible. For me I always put myself in the shoes of a potential subject in a shot and ask myself "would i want to be in the picture?".

That's one way of looking at the issue of photographing people, but it doesn't necessarily have any bearing on what the law allows.

A person in a public place may not want to be photographed, but that doesn't make the act of photographing that person unlawful.

[Scotty72]

That's one way of looking at the issue of photographing people, but it doesn't necessarily have any bearing on what the law allows.

A person in a public place may not want to be photographed, but that doesn't make the act of photographing that person unlawful.

This would be ridiculous (suing because you were photographed in public): what about looking at some (in public) who did not wish to be looked at. Or even mentioning someone's name who did not wish to be talked about.

There is being cautious of what you should photograph and, there is being ridiculous.

Scotty

[Perfectoarts]

Having researched on the web and here, most of the information relates to NSW. I do not find any current laws or by-laws for Queensland, especially for eg 2010.
Anyone can steer me in the right direction for more info?

[Xenedis]

Having researched on the web and here, most of the information relates to NSW. I do not find any current laws or by-laws for Queensland, especially for eg 2010.
Anyone can steer me in the right direction for more info?

While Andrew Nemeth's information may be NSW-centric, I'd be surprised if the laws in other Australian states and territories differed in any significant, detrimental way.

Note also that some of the legislation (ie, Copyright Act of 1968 and Trade Practices Act of 1974) referenced is federal.

It seems to me that there is very little in Australian law that limits photography itself; rather, it's other behaviour, in which some persons possessing cameras may engage, that is already unlawful under other, non-photography-specific legislation.

[ricktas]

While Andrew Nemeth's information may be NSW-centric, I'd be surprised if the laws in other Australian states and territories differed in any significant, detrimental way.

Note also that some of the legislation (ie, Copyright Act of 1968 and Trade Practices Act of 1974) referenced is federal.

It seems to me that there is very little in Australian law that limits photography itself; rather, it's other behaviour, in which some persons possessing cameras may engage, that is already unlawful under other, non-photography-specific legislation.

Agree with that. Usually it is related to posessing pornography, trespass etc, refusing to undertake the direction of a police officer, not the actual taking of a photo, that lands the person in trouble.

[kiwi]

With Queensland in prticular the main thing to be aware of are blue card requirements.

[Longshots]

With Queensland in prticular the main thing to be aware of are blue card requirements.

?

Care to elaborate on that ?

[kiwi]

Not all States require a blue card for working with children as a photographer, it may be relevant

[Longshots]

It might be indeed. But its probably worth pointing out that in most cases you do not need a Blue Card to photograph children in Qld. And even though I'm now a Blue Card holder myself it was because I might be teaching children. When I tried to apply as a photographer, I was refused on the basis that I would not need one. Always worth saying though that it seems to be on a case by case basis. My concern was that people may have felt that they would need a Blue Card in relation to the original topic of what you can shoot, who and where; and with that reference, in situations I've been in, I've never ever been asked for one. However, I'm quietly confident that if school photography was a key element to my business, I would be able to apply for one.

[Perfectoarts]

Thank you for your input. Still leaves me wondering what we can and cannot do. As we live in Cairns, we are restricted already by our Council.
When we had our Club night photoshoot we had to notify the Police Department and Council who notified Security Guards know that we were about.
Of course another outing around the Trinity Inlet we had to be very careful, due to Naval Base etc. Of course the fabulous kids playground "Muddies" is just spectacular to photograph in with vibrant colours, much water, great backdrops. When I go with my grand children and have camera in hand, I too am still looked at as a lecherous person. So I reassure parents that I am only photographing my own children. Such a shame.

Tomorrow we are heading off to Kuranda. Touristy little place up on the mountain - should be interesting when I really want to do some Street Photography. I love capturing people in candid moments. Always tasteful, but of course no doubt will have some difficulties with some people. With 90% of national and mostly international tourists, it will be interesting to see the response. Might arm myself with some model releases if necessary.
Will keep you posted.