is your photograph legal and ethical?

see also:

• copyright law and photography in Australia

• Disclaimer I am not a lawyer and this is NOT legal advice, but just some things you may want to consider!
• Copyright law is primarily economic - recognizing the right of the creator to be remunerated for uses of their work, the owner can generally sue for actual damages such as loss of license remuneration or profits gained from use of the work without license (and, in the US, if the work was registered prior to infringement, they may also be able to sue for statutory damages) - an exemption may be “fair use” (eg. for research or educational uses), and the image must have some creativity in it for it to be copyrightable
• Moral rights is personal, recognizing the right of the creator to be connected to their works or derived works and that the works are an extension of the creator's personality - in other words any use of their works should be clearly attributed - social media websites such as Tumblr, Pinterest, etc make it extremely easy for users to blatantly disregard moral rights by their image cross-sharing ease without requiring image attribution, and the works should not be used in a manner derogatory to the creator's intent - an exemption may be trying to take reasonable steps to identify the creator
• Criminal law breaches may have devastating long lasting ramifications for those in breach, particularly, if the breach comes under the umbrella of a sexual offense as may be the case in publishing intimate photos without consent (eg. not getting a model release), or failing to ensure a model is over the age of 18yrs

• photographers have a habit of bending the rules to get the shot they want
• what many photographers forget though is that by publishing a photograph, they can risk incriminating themselves as the photograph may be traceable to them and to a time and place, and an activity - any of which may have legal implications

• this section generally implies the photographer is either ignorant, stupid, reckless or a blatant criminal.
• using a camera whilst driving a car in many places would be regarded a legal offence, albeit a summary one, although this could escalate into a far more serious offence if it results in a serious accident injuring or killing others, perhaps culpable driving, etc.
• taking selfies in the car whilst not wearing a seatbelt, or the driver is obviously committing an offence
  • taking photos while the car is moving may also cause death or at least major facial trauma if the car crashes as air bags may ram the camera into your face ¹⁾
• invasion of privacy
  • in Australia there is no general right to privacy but there are a number of laws that relate
  • in general, whilst one is generally allowed to take photos of others in public places or even in private places as long as taken from a public place (without violating law of trespass on private property), but there are many exceptions to this, particularly if the images are non-consensual intimate (this could potentially extend to people in swimwear on a public beach) or sexual, or if the photographer's behaviour is offensive or harassing.
  • several states of Australia have introduced new laws relating to non-consensual recording or sharing of intimate images such as:
    • NSW Crimes Amendment (Intimate Images) Act 2017
      • “Agreeing to the recording or distribution of an image on one occasion, or to a particular person, or in a particular way, does not mean that a person will be taken to have agreed to recording or distribution of another image, or on another occasion, or to another person, or in another way.”
      • photographing people through their windows (or even in public spaces if the images are deemed intimate) without consent is likely to be a criminal offence!
    • Sections 41DA, 41DB of Summary Offences Act 1966 (Vic)
• trespass
  • this includes entering private property without permission
  • certain government places restrict unauthorised entry eg. power stations, railway yards, military stations
  • climbing Uluru is now illegal as of Oct 2019
• other places where photography is forbidden by law:
  • local councils may have regulations against photography in schools, cemeteries, swimming pools, beaches or certain tourist locations such as Kyoto’s Historic Gion District²⁾
  • State or Federal laws may restrict commercial photography without permit in various places such as national parks
  • creative performances may be subject to copyright law with each aspect of a performance subject to copyright such as the music, scripts, background scenery or costumes, and choreography
• operating a drone outside of the guidelines for drone operation
• offensive behaviour
  • in most parts of Australia, adult nudity per se is not an offence as long as it is:
    • not intentional exposure with sexual intent in public or visible from a public place
    • not indecently offensive or obscene - in Victoria, this now includes mooning or streaking in public ³⁾
    • not specifically prohibited in that public place
    • not disrepecting the cultural or religious significance of a place - this may apply to indigenous sites such as Uluru
  • in some countries nudity in public might bring a very serious penalty - even a death penalty
    • topless bathing is punishable by imprisonment in Abu Dhabi
    • wearing skirts above the knee could lead to fines in UAE while nudity or “lewd behaviour” may result in a fine plus up to 6 months imprisonment
    • making rude gestures may be an offence in Dubai
• blatant criminal behaviour
• inadvertent ignorant criminal behaviour such paying a model for sexual activities when they are not a legal prostititute
• non-consensual behaviours - harassment, abuse, etc
• homosexuality is still illegal in some countries such as Barbados, Morocco and Goa
• kissing in public is illegal in some countries such as Egypt and Abu Dhabi
• contextual use of imagery which may open risk of defamation
• offences relating to child pornography
• selling images you do not have the rights to sell (see below)

for example in Victoria, Australia in Sept 2020:

“Under Second Step restrictions in metropolitan Melbourne, photography shoots are not a permitted activity, unless they are in relation to production of telecommunication required to support critical functions, such as law enforcement, public safety, medical and other critical industries and where this activity cannot be undertaken virtually.”

“Under the Third Step, photography is permitted in Regional Victoria as long as social distancing and face mask measures are adhered to.”

“Under current restrictions, “photoshoots” are not a lawful exception for not wearing a face covering. This means that a face covering is required at all times during a photoshoot.” For more information on exceptions for not wearing a face covering, please see the DHHS website.

• you must check the local laws regarding use of drones
• in Australia the laws are very restrictive indeed as there are laws against use:
  • First Person View (FPV) outdoors unless you have a permit
  • higher than 120m above ground height
  • within 30m of other people
  • if weighs more than 250g, it can't be flown within 5.5km of a controlled airport or when a manned aircraft is nearby
  • at night or in fog or cloud
  • over “populous areas” which may include beaches, sports events, etc
  • where you cannot see it by line of sight
  • where it may violate personal privacy
  • over emergency situations or where it may impact public safety
  • commercially without a remote pilot licence unless your use is within exclusion clauses
  • see https://www.casa.gov.au/knowyourdrone/drone-rules
• in addition, in Victoria, you cannot fly drones without a permit (see permit application - there are on the spot fines if caught):
  • in National Parks (see Parks in Victoria)
  • over Marine Reserves
  • within 500m of marine mammals such as whales and dolphins

• there is wide variation in how each country or even state or even local councils stipulate in law what is permissible when it comes to photographing people in public places without their explicit consent
• see https://en.wikipedia.org/wiki/Street_photography for more details
• in the US, the First Amendment appears to give rights to photographers to photograph anything in the public space
• in Australia, there are laws which allow a person to take legal action against a photographer if “intimate” (does not need to be nude) images are published of them without their consent
• in Germany, there is a 1907 law which states that the right of publishing a photo is owned by the subject of the photo, unless there were more than 5 people in the photo or the subject is a public figure in a non-embarassing pose, but it has apparently been rarely used as street photography has been considered an “art”.
• in the European Union, the EU Human Rights Act 1998, in which all EU countries have to uphold in their domestic law, establishes in a right to privacy restricting publication of photos without consent, but there is also a right of freedom of expression so courts will usually consider the public interest in balancing the rights.
• in Hungary, a 2014 law takes the EU law even further and applies it to the taking of the photo not just publishing it.
• Japan has strict laws, especially if the image is shameful.
• YouTube discussion on law and ethics of street photography 2019

• if one is selling a photograph, they must:
  • own the copyright or a licence to sell the photograph
  • ensure you have written permit from the artist to use images that show any art works or other works which themselves are subject to copyright, this also applies to street art, particularly if the street art is the key focus ⁴⁾
    • permanent sculptures in public places are generally exempt:
      • Under section 65 of the Australian Copyright Act, it is not an infringement of copyright to photograph or publish a photograph of a sculpture if the sculpture is permanently situated in a public place or in premises open to the public.
    • a trade mark is only considered infringed if it is used as a trade mark by another person without authorisation, so a photograph containing a trade mark does not infringe copyright laws, but may infringe trade practices laws
  • ensure that if persons are recognisable, there is a model release or their consent is implicit by their presence (eg. background spectators at a sports event)
  • ensure that if property under copyright (most public buildings are not under copyright in Australia) is recognisable, there is a property release
  • ensure that if the photograph was taken within a specified property such as specified national parks, specified public places (eg. Sydney harbour), or places such as sports arenas particularly where a ticket was required to enter such a place (and these tickets are generally sold with legal conditions relating to acceptable photography), that an appropriate permit has been obtained

• failing to adequately remunerate third parties
  • if one is selling a photograph of a model, the model release should explicitly state whether commercial use is agreed or not - this is particularly the case for photo shoots which are “TFP” whereby it is generally accepted that the images will NOT be used commercially - if there is an intended change to this status, the photographer should re-negotiate this with the model.
    • models should be aware of how their images could be used and should ensure the model release reflects their expectations - photos taken in a TFP should not then be sold as stock photos without the model's written consent such as was the case here: https://petapixel.com/2018/08/02/she-posed-for-a-free-photo-shoot-now-her-face-is-misused-everywhere/
• appropriate representation of the subject
  • utilising an image of a subject, be it a product, model, or otherwise, in a controversial context without the subject's consent, is likely to be considered unethical as a minimum, but may also contravene other laws such as defamation
• consent
  • whilst in many cases consent or even a model release from the subject is required by the laws of the country for any image to be published, as a general rule, consent is generally not legally required for non-intimate images of people in public, however, depending upon the situation, there may be an ethical issue of the need for explicit consent
    • eg. https://petapixel.com/2018/07/30/taking-photos-without-consent-is-like-unwanted-touching-sf-street-fair/
      • in the US, First Amendment apparently gives rights to shoot photos in public places without permission
      • in Australia, there are new laws which cover this situation - you may be held liable by the subject if they take offense to you publishing an intimate photo of them whilst they are in public spaces - you could shoot it but just not publish it
      • in Paris, there is a law against street photography showing people's identity
• originality of the imagery
  • this may fall under copyright law
  • it is generally bad form to pass off an image as being original when it is essentially a copy of another person's specific creative efforts, or indeed a derivative of another person's works
  • of course, appropriation of other creator's ideas are extremely common in the art world, and indeed, in many areas of photography, the same tropes are re-used over and over again, partly because clients (eg. brides) want that style of image, and partly because selfie photographers are often not that creative or imaginative and just copy what has already been done a thousand times over because it looks cool
• photojournalism unwritten rules
  • Documentary and street photography have the duty to simply show reality
  • Do not direct or stage the image - the image should be that of a spontaneous event
  • Do not heavily edit - the image should be authentic
  • Do not mislead context - if your image is that of a stuffed animal, don't mislead people by allowing them to believe it is a live animal in the wild
  • Do not steal - the image must be your own
  • see also https://www.diyphotography.net/the-ethics-of-photojournalism/

• there are legislative provisions that restrict photography in Australia which include:
  • restrictions on commercial photography of Commonwealth reserves such as Kakadu, Uluru which require applying for and paying for a permit - penalty may include loss of photographic equipment and film/media.
  • restrictions on commercial photography of Sydney Harbour Foreshore public areas unless authorized by the Sydney Harbour Foreshore Authority.
  • restrictions on commercial photography in State Parks unless you have a permit - for Victoria, see here.
  • restrictions on commercial photography in some public areas according to local council requirements - may need a minimum $20m public liability insurance and lodge a permit application. 
  • trade practices may place restrictions such as:
    • unauthorised use of images of persons or buildings which may adversely impact on that person or business such as by misleading or deceiving the public, or the context of use or the image itself is defamatory.
    • thus, generally if you have asked someone to sit for you, a model release should be signed by that person which will minimise your risk of actions under the law of passing off or Trade Practices Act.
    • casual shots of people in the street or playing sport, when it is impractical to obtain a model release, may not be able to be used commercially if they contravene the Trade Practices Act.
    • in general, if you use photos of anyone where they are identifiable and the image will be used to sell a product and you do not have a signed model release, you are asking for litigation.
  • invasion of privacy:
    • in general, it is not an invasion of privacy to take a photograph of another person, but there are some circumstances when it may be (see http://www.privacy.gov.au ): 
      • the current Privacy Act only applies to:
        • a person's “personal information” which is in the form of a record such as a document, database, photograph or other pictorial representation of the person, and,
        • businesses larger than $3m annual turnover or health providers
      • thus if such a business placed a person's photograph on the internet without consent, the person could refer the matter to the Privacy Commissioner.
      • thus the current Privacy Act will NOT apply to an individual who posts an image of another person without their consent (see http://www.privacy.gov.au/publications/photosub.pdf ), the government is looking at legal reforms to address this loop hole where such images may be used inappropriately or unreasonably, but still maintaining the general freedom to take photographs in public places.
      • In general, it appears that it is reasonable for an individual to publish photos of other people without their explicit consent if such publication is in a reasonable context (ie. holiday beach photos which include other people shown on a family album site but not on an erotic voyeuristic web site which may cause harm and distress).
      • it would be reasonable behaviour that an individual remove such unauthorized images from publication if requested to do so by the person in the image or their guardian.
      • furthermore, behaviours that may be construed as being voyeuristic should be avoided, in particular this is the case where children are involved, hence many venues place bans on use of mobile phones in change rooms and schools will often question anyone with a camera in the vicinity of a school.
      • the criminal law has also been amended to make it illegal to intentionally use a carriage service (eg. internet) in a way which would be regarded by reasonable persons as being in the circumstances , menacing, harassing or offensive.
  • private property:
    • the owner of private property (including shopping malls) has  the right to forbid you from photographing while you are on their property but they do not have the right to stop you photographing their property when you are outside it, nor do they have the right to assault you, damage or confiscate your equipment or insist you delete the photos.
    • train stations in Melbourne:
      • http://www.connexmelbourne.com.au/index.php?id=56 
  • common law:
    • see http://www.4020.net/unposed/photorights.shtml 
    • injunctions:
      • Injunctions may be sought to halt the publication of photographs if the images are indecent, offensive or otherwise demean the subjects in them - but just being embarrassed or uncomfortable would not be sufficient grounds.
      • similarly, there may be court orders to prevent photography or publication of images of persons under protection such as the Child Protection Act or Witness Protection.
    • nuisance or trespass:
      • “For nuisance or trespass, merely taking a photo of someone is permitted. It only becomes an actionable Tort if you photograph the same person again & again over an extended period of time”
  • NSW Summary Act 1988:
    • in NSW, criminal charges may be applied if someone takes photos of a “sexual nature” AND they were taken in places where the non-consenting subject would have a reasonable expectation of privacy such as toilets, changerooms, enclosed backyards. Even though this Act does not ban people from taking photos of semi-naked people in public places such as the beach, society and law is increasingly demanding that behaviour by such people that most would feel is offensive, should be avoided.
  • child pornography:
    • in case you have just landed from Mars, it is a criminal offence to create, possess or access child pornography.
    • in Australia, the individual states have their own laws which have generally similar definitions.
    • NSW law 
      • seems to only define child pornography as such if a child is engaged in sexual activity, or placed in a sexual context, or subject to torture, cruelty or child abuse.
      • strangely, there is no mention of nudity itself, although non-sexual nudity may fall under the offence of publishing indecent material, although where indecency is in issue, the opinion of an expert as to whether or not an article has any merit in the field of literature, art, medicine or science (and if so, the nature and extent of that merit) is admissible as evidence.
    • Victorian law defines child pornography as 'a film, photograph, publication or computer game that describes or depicts a person who is, or who looks like, a minor (ie. under 18 was under 16?) engaging in sexual activity or depicted in an indecent manner or context'.
      • photographs of minors naked are only allowed in certain specified situations and used in appropriate contexts, these include medical purposes, naturalist communities, family photos of babies and certain indigenous peoples contexts.
      • http://www.austlii.edu.au/au/legis/vic/consol_act/ca195882/s67a.html 
      • http://www.legalaid.vic.gov.au/745.htm 
    • BUT the Australian Crimes Legislation Amendment (Telecommunications Offences) Act (No.2) 2004 which covers transmission of images by phone or the internet has a different definition of child pornography:
      • essentially it includes images of persons or representing persons under 18yrs of age or appears to be under 18yrs of age, either depicting sexual poses, sexual activity, breast or genitals or their representations, that a reasonable person would find offensive.
      • 473.4   Determining whether material is offensive:
        • (a)  the standards of morality, decency and propriety generally accepted by reasonable adults; and
        • (b)  the literary, artistic or educational merit (if any) of the material; and
        • ©  the general character of the material (including whether it is of a medical, legal or scientific character).
    • more information on Australian laws: 
      • child pornography criminology: 
        • http://www.aic.gov.au/publications/tandi2/tandi279t.html 
        • http://www.aic.gov.au/publications/chpornography/ 
      • Internet censorship laws: http://libertus.net/censor/netcensor.html#AusStates 
      • photographer's rights: http://www.4020.net/words/photorights.php 
  • working with child models
    • If child is aged under 15yrs a Child Employment Permit MUST be obtained in ADDITION to a Child Model Release signed by the parents
      • in Victoria, it is an offence under the Child Employment Act to employ a child without a permit.
      • You will be regarded as employing a child if the child works pursuant to a written or unwritten contract for services or takes part in any business, trade or occupation you carry on for profit, irrespective of whether the child is paid or not.
    • Working with Children Check is mandatory if the child is under 15yrs age even if its TFP
      • The Working With Children Act 1958 (Vic) prohibits people from engaging or volunteering in child-related employment without applying for and providing a valid assessment notice (also called a Working With Children Check or WWC). The purpose of the Working with Children Check is to protect children under 15 years who are employed or who are undertaking work experience under the Education and Training Reform Act 2006.
    • age of consent:
      • prudent Australian photographers will not take any formal photos of anyone under 18 years without written consent of their parent on a model release even though the age of consent is 16 years in most states (17 years in Sth Aust & Tas).
      • consent though will not get around child pornography laws - and the child does not need to be nude or even under 18yrs (see above)!
        • in Victoria, children cannot be employed to work naked, unless they are under the age of 12 months, and then only with their parents being present and consenting (as per the mandatory Code and a Guide to the Employment of Children in the Entertainment Industry).
        • in Victoria, it is an offence to send an intimate image of a person under the age of 18 years to a third party, even if the person under 18 has provided their consent. (2014 Crimes Amendment (Sexual Offences and Other Matters) in Victoria)
      • in NSW, it is an offence to publish identifiable material of a child under age 18yrs who is involved in the Children's Court or a non-court child protection proceeding under the Children and Young Persons (Care and Protection) Act 1998.
    • it must be OUTSIDE of school hours unless special exemption
    • https://www.artslaw.com.au/information-sheet/children-in-the-creative-process-vic/
  • display of “explicit” images:
    • the office of film and literature classification is the Australian government agency that administers the national classification scheme for all films, computer games and publications that are exhibited, sold or hired in Australia.
    • magazines (and websites hosted in Australia) fall into one of two categories:
      • unrestricted:
        • any depiction of female genitals must be “discreet” - eg. no inner labia visible
        • any depiction of male genitals must be “discreet” - eg. non-erect
        • any depiction of sexual activity must be “discreet” and not allowed to be gratuitous or detailed
      • restricted (magazines must be bound in plastic until sold to persons 18 and over, websites must have age verification system):
        • images that fall outside of unrestricted category
        • the subjects in any nude images or images depicting sexual activity must still be 18 years or older, even though the age of consent in most states is 16 years and obviously must not be considered under the definition of child porn as above. 
• although you are usually permitted to photograph sculptures exhibited in public, you will usually need permission to photograph other publicly exhibited artworks such as murals
• although there may not be laws against it, many security sensitive sites that may be targets for terrorism may be off-limits to photographers.
• local laws against stupidity
  • you are likely to have a $1000-$3000 fine if you take a selfie too close to dingoes on K’gari, also known as Fraser Island, in Queensland
• local laws relating to security or surveillance cameras
  • Victoria:
    • section 7 of Victoria's Surveillance Devices Act 1999, it's an offence if a person “knowingly installs, uses or maintains an optical surveillance device to record visually or observe a private activity to which the person is not a party, without the express or implied consent of each party to the activity”. However, it seems “unless the police have evidence of use of the camera by its owner for nefarious purposes, there really isn’t scope for them to intervene.”

• ensuring no harm is done
  • this applies to landscapes, people, and other situations
  • this includes respect for the subject, the principles of subject's agreement, and that the subject is not exploited or misrepresented
  • see Instagrammers and "influencers" ignore a farmer's plea for respect and invade his lavender fields
• deception of the viewer
  • this is VERY difficult area, particularly in the age of Photoshop
  • everyone will have their own views, and the importance of declaration will depend upon:
    • the type of image - a documentary style image should be true to life, and some would say landscape photography falls into this category and have minimal manipulations performed, either of the scene or in post-processing
    • how obvious the manipulation is
    • the type of manipulation
  • where possible, the viewer should be informed of the extent of manipulation of the imagery:
    • composited images where multiple different scenes or subject material are combined
    • use of multiple images of the same scene - panoramic, HDR, focus stacking, etc.
    • use of morphing to change body shape
    • the cloning out of significant components of a scene
    • the manual manipulation of a scene such as moving leaves, rocks, etc to create more aesthetic compositions as distinct from real, “found scenes” which are viewer may be assuming was the case
    • use of gradient filters, etc
• ensuring third party creators are credited
  • models, makeup artists, producers, stylists, etc should be credited where possible unless they prefer to remain anonymous (which they may well wish to do to avoid stalkers harassing them)
• cultural misappropriation
  • the unacknowledged, inappropriate, inaccurate, non-contextual, sexualised or stereotyped adaptation of an ethnic group's cultural practice, customs or identity markers by a group with greater privilege or power.
  • what is usually acceptable though is cultural appreciation whereby use of an ethnic group's cultural components is done with a proper understanding of it and its contextual meaning while honoring the history and respecting the culture and it's people.

• there is a common saying - you are perceived as being only as good as your worst photograph
• publishing multiple images from one shoot tend to bring the perceived average quality down compared to only publishing the one best shot
• publicly criticising others, especially third party co-creators such as models, nearly always comes back to bite you
• even if your photography is legal and ethical, the content of your photographs and your behaviour or commentary may have a massive impact on your branding, and this may even affect your non-photography career prospects if they do not fit well with prospective employers or professional bodies