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The photo, the net and the law
Digital technology and the net are reforming so many things, among them photography. Do you remember when we used to develop films with 2 or 3 summer holidays on the same roll, and then bury the prints deep in the family album? Now we can snap hundreds of shots a day and share them on the net in real-time. If you are lucky your shared shot or video can get more viewers than a small newspaper has readers. The newspaper is made by professionals who know the ethical and legal aspects of publishing. But do you know? How do you decide if it is OK to publish a shot or not? Or to take the photo in the first place? With common sense? That’s OK, it’s a good start. But I suggest that you get familiar with some of the basic legal aspects too.
You know how it is to ask a lawyer if something is legal or not. It’s impossible to get a straight answer. I start to understand why when digging into this problem. There are really so many aspects that matter and many things that aren’t black and white (no pun intended). And on top of that, the international aspect. Laws are different in every country. I have been looking a long time for a good and comprehensive guide that covers photo law in different countries. In vain so far.
That’s an indication about how big and complex the issue is. But I’m going to give it a try anyway. I have tried to list the basic principles in a very compact form. This list can’t be very precise as it isn’t country specific. So be aware that the law in a specific country can differ from what’s stated below. But the risk that your camera puts you in trouble should be significantly lower if you know at least these principles.
To take a photo
- It is generally OK to take photos in public places, but some limitations may apply.
- Taking photos that present a person in a defamatory way may be banned.
- Taking photos of police officers may be banned.
- Taking photos of military installations and critical infrastructure may be banned.
- Taking photos of monumental buildings may be restricted or banned.
- It is generally OK to take photos of other persons without permission in public places, but some may have a personal problem with that. It’s polite to comply and cease shooting if someone complains, but these persons do typically not have any legal right to prevent others from photographing them. Unless the shooting can be seen as harassment. Also keep in mind that there may be cultural restrictions. It’s for example considered bad habit to photograph priests, monks and nuns in some countries.
- What’s a public place has typically nothing to do with ownership. It’s a place that the public has free access to, even if it isn’t owned by a public institution. Events and transportation that the public can buy tickets to freely do typically also qualify as public places.
- Some public places, like shopping centers or shops, try to limit or ban photography. Those rules may or may not be legally binding, depending on local legislation. Many shop owners seem to know as little as their customers about the laws regulating photo.
- Photography is typically not allowed without permission in private places and events for invited guests. You should always ask for permission before taking a shot in someone else’s home. Regardless what your local law says, that’s common sense IMO.
- Vehicles where you can stay overnight may be considered private places just like homes. Ordinary cars do not belong to this category.
- Taking photos of kids is typically no different from other kinds of photography from legal point of view. Many parents have however became wary about having pictures of their kids online because of increasing media coverage about pedophilia. So it’s best to be careful when shooting others’ children. Talk to the parents first, if possible.
- Remember that knowing the law and your rights to photograph is important, but so is common sense. If you face a photography ban that is in violation of your legal rights, it’s up to you if you want to challenge the ban or save both parties some trouble. Is it worth it?
Copyright and licenses
- The creator of a creative work, like a photo or a video, has automatically the right to decide about how the work can be used, and to be compensated if the work creates profit. It’s a bit like ownership and it is called copyright.
- Copyright exists automatically. You do not have to apply for it, register the work somewhere or even put a copyright statements in the corner of your photo.
- The copyright holder is the person who has done the creative work, i.e. came up with the idea for the photo. It doesn’t matter who pressed the shutter button or who owns the camera.
- Copyright can be transferred to someone else, which is like giving away the ownership. The copyright holder can also grant licenses to use the work. It is very important to understand the difference between these two.
- There are no usage rights by default. It means that you basically can’t do anything with a photo taken by someone else without permission from the copyright holder. And vice versa for others using your shots. There are however exceptions to this. The fair use concept in US is one example. It states that minor insignificant use is OK without permission, like use for private or some educational purposes.
- If you own the copyright, you have free hands to grant, or refuse to grant, others the right to use your photo. Such rights are called a license. A license can be any kind of free form statement that:
- Specify what work it affects.
- Specify who it grants rights to, or grant rights to anyone who want to use the work.
- Can specify how the copyright holder shall be compensated.
- Can demand that the copyright holder shall be attributed.
- Can limit the rights to a defined period of time.
- Can limit the rights to a specific kind of use.
- Can limit the rights geographically.
- Can be exclusive, meaning that the copyright holder agrees to not grant any conflicting licenses to others.
- Creative Commons (CC) is a widely used ready-made system for granting generic licenses to use your photos. This is a nice way to share shots if you don’t mind others using them for free. There are several kinds of CC-licenses, for example licenses that exclude commercial use.
To publish a photo
- Remember that taking a photo and publishing it is two different things. You do not necessary have the right to publish even if it’s OK to take the photo.
- You can generally publish your own shots freely as long as it is done as a private person on a hobby basis. Like sharing on Facebook or Flickr.
- Publishing a shot that presents a recognizable person in a defamatory situation, state or context is most likely illegal.
- Be careful when publishing pictures of others’ children. It’s typically legal, but the parents may have issues with it.
- People usually can’t prevent others from photographing them in public places, but they have the right to decide if shots of them can be used commercially. An approval of this kind is called a model release. It is a document where a person who is recognizable in the picture grants rights to use the image. A similar property release may sometimes be needed for shots showing buildings etc.
- Some companies are guarding their brands rigorously. They may have a problem if they see their brand exposed in a published photo in a way they don’t like. You may get a letter that threat you with legal actions unless you remove the photo. There’s typically little or no legal substance behind these threats, as companies and brands typically aren’t protected against libel etc. in the same way as individuals. You may comply, ignore them or ask for more details about what paragraphs they refer to and under what jurisdiction. That may make them go away.
- You do by default not have any rights to publish others’ photos (exceptions exist, see for example fair use in US). Many photographers are however adopting a liberal attitude against sharing and publish their work under a CC-license, or similar. If you need to illustrate something, you can search the net for CC-images for example on Flickr. This is how I get most of the pictures I use in these blog posts. Remember to credit the photographer! That’s a small token of appreciation compared to the value you get.
- But what about sharing in social media, Facebook for example? If you take a picture file and upload it so that it is visible to anyone, then it is definitively publishing. But sharing a photo that someone else has uploaded to Facebook is totally different. What you do is really to tell others that the picture exist and where they can find it. You just share a pointer to it, not the image itself. That is of course always OK and only limited by the privacy settings of the photo.
As said. This summary is an attempt to list some generic fundamentals that should be valid pretty much everywhere. That’s a good start, but if you are a serious photographer you should educate yourself with more accurate info for your own country. Also, what’s said about photos also applies to video.
Do you know of a good source that covers international photo law? Or a good guide for your own country? Then post a link as a comment to this article. Maybe there isn’t a comprehensive international guide, but a collection of links to guides for different countries is almost as good.
And finally. Quoting an excellent tweet from @Mikko. “Remember that legal advice you find on the net is worth every penny you paid for it.” Nice disclaimer, isn’t it. :)