ACMP v AIPP - why 2? why join?

[SteveB]

All registered up for the HOTD William, really looking forward to it. Doing all three days except 1/2 day on the Saturday as I have a wedding to shoot.

[ehor]

Interesting thread.
I think it's time I joined AIPP

[Longshots]

All registered up for the HOTD William, really looking forward to it. Doing all three days except 1/2 day on the Saturday as I have a wedding to shoot.

On the question of why join AIPP:

Just to highlight one of those benefits to AIPP members. In Brisbane AIPP Qld has the most amazing 3 day seminar (26th to 28th Feb 2010). With a host of over a dozen amazing speakers:

http://www.hotd.qaipp.com.au/index.php

This 3 day event costs just $350 for a full member or $395 for non members

Here's a diary for the 3 days:
http://www.hotd.qaipp.com.au/index.p...=day-schedules

[choptop]

No, I have reread and think I got it the right way around

And no, I dont mean street = consumer

I mean street = taking pictures in public of say strangers, railway stations etc where all the privacy concerns are raised over and over (and over) again

Id say the vast majority of consumers take pictures of their family, holiday snaps, pets etc

>>
I hope people are aware that there IS no legal right to privacy in Australia. (not sure about NZ). you can take photos of whomever you want, wherever you want (in public) and can sell the prints as art, cards, t-shirts, whatever. You don't need permission.

The problem arises if you want to use the image in advertising... because you are implying that that person is endorsing whatever product/service is being advertised. That can be challenged in court (under defamation laws, i think ?) .which is why image libraries need model releases for all people in photos.

[Kym]

>>
I hope people are aware that there IS no legal right to privacy in Australia. (not sure about NZ). you can take photos of whomever you want, wherever you want (in public) and can sell the prints as art, cards, t-shirts, whatever. You don't need permission.

The problem arises if you want to use the image in advertising... because you are implying that that person is endorsing whatever product/service is being advertised. That can be challenged in court (under defamation laws, i think ?) .which is why image libraries need model releases for all people in photos.

Errr... We do know this. Refer:
http://www.ausphotography.net.au/for...ad.php?t=20673
http://www.ausphotography.net.au/for...ad.php?t=24730

I think the point Darren is getting is that it has been done to death.
The privacy on railway infrastructure is that it is not considered public and has specific rules
re: photography implemented by the various rail authorities.
(and I know as I work in the rail industry)

[Redgum]

(and I know as I work in the rail industry)

Ah! then, we must be on track.

[Longshots]

>>
I hope people are aware that there IS no legal right to privacy in Australia. (not sure about NZ). you can take photos of whomever you want, wherever you want (in public) and can sell the prints as art, cards, t-shirts, whatever. You don't need permission.

The problem arises if you want to use the image in advertising... because you are implying that that person is endorsing whatever product/service is being advertised. That can be challenged in court (under defamation laws, i think ?) .which is why image libraries need model releases for all people in photos.

Kyms already pointing out this has been covered. And although this is off topic, there is two points to Choptops statement:

1) you're correct - there is no legal right to privacy in Australia

2) you're wrong - good luck if you want to take pictures of strangers and sell the (using them commercially) "prints as art, cards, t-shirts, whatever". There is nothing correct in the statement that it relies on implying endorsing a product or service, you would be using there likeness in a commercial situation, simply by selling it as a card - which you cannot without a release.

[maccaroneski]

There is nothing correct in the statement that it relies on implying endorsing a product or service, you would be using there likeness in a commercial situation, simply by selling it as a card - which you cannot without a release.

William,

Where is this written (as they say)? My understanding was that Mr Chop was on the right track, but for a slightly incorrect assertion regarding "defamation laws" - it's actually "passing off" (which essentially falls into the same category, I'm just nit picking). And even then as far as the law has gone is to say that you are in danger if the subject is in essence a celebrity or other well known endorser of products.

The above however is based on 12 year old memories of law school and a little more than passing interest in relevant cases if they come to my attention.

[maccaroneski]

There are certainly thoughts on where the law might go (as I've said before "you don't want to be the test case") and proccedings that have commenced and resolved prior to hearing based on where the law might go (such as an action brought by Ricky Ponting against an unauthorised biographer using Ricky's image in the cover), however as far as I was aware my first paragraph contains the extent of what is "settled" law.

However outside of my particular specialty, I am sure that much passes me by these days.

[Longshots]

William,

Where is this written (as they say)? My understanding was that Mr Chop was on the right track, but for a slightly incorrect assertion regarding "defamation laws" - it's actually "passing off" (which essentially falls into the same category, I'm just nit picking). And even then as far as the law has gone is to say that you are in danger if the subject is in essence a celebrity or other well known endorser of products.

The above however is based on 12 year old memories of law school and a little more than passing interest in relevant cases if they come to my attention.

OK I'm not a lawyer, but a professional photographer of many years, with a passing interest in the details of life So I cant point you to a specific law. However I can quote from ArtsLaw website in Australia:

Taking photographs in a public place

It is generally possible to take photographs in a public place without asking permission. This extends to taking photographs of buildings, sites and people. There are, however, some limitations.

Photographing people

There are no publicity or personality rights in Australia, and there is no right to privacy that protects a person’s image. Existing privacy laws are more concerned with storage and management of personal information and are of limited relevance to the present issue.

There is also currently no tort of invasion of privacy in Australia, but in ABC v Lenah Game Meats (2001) the High Court did not exclude the possibility that a tort of unjustified invasion of privacy may be established in the future. Based on this view, the Queensland District Court found in Grosse v Purvis (2003) that a tort of invasion of privacy had been made out on the facts and awarded the plaintiff damages. However, this case concerned a long history of harassment over many years and has limited application. As a result, taking photographs of people in public places is generally permitted.

Photographing people for a commercial purpose

If you are using your shots for a commercial purpose, such as for an advertising campaign, you should obtain a model release form signed by the subjects you are photographing to ensure you have authorisation to use their image to sell a product. See the Arts Law information sheet “Unauthorised Use of Your Image” for further information on defamation, passing off and trade practices law. A sample photographer’s model release form is also available on the Arts Law Centre of Australia website.

Photographing people on private property

There is no restriction on taking photographs of people on private property from public property. According to Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) there is no freedom from view, so people who are photographed on their property from a public location have no legal claim against you if what is captured in the photograph can be seen from the street. The same applies to photographs taken from private land when you have permission to take photographs. You should be careful that you are not being a nuisance and interfering with someone’s right to use and enjoy the land (see the case of Bathurst City Council v Saban (1985)).

Photographing people for commercial purposes section should not be taken at face value, as the definition of commercial purposes is certainly open to much wider interpretation to just the "advertising purposes". It certainly in my opinion would cover commercially available (ie just being sold) post cards.

Here's the Arts Law Link :
http://www.artslaw.com.au/legalinfor...hersRights.asp


As every single photographic competition's terms and conditions include the stated requirement that all people in all images should be model released; its pretty clear, that to be on the safe side a model release should be obtained for any future use, in any slightly commercial use.

As you're clearly an exlawyer student, or pro - not sure so dont take offence if I have that wrong; you would clearly understand that law isnt always about something being written in black and white. But its more about a case going to court, and then an outcome from that case, causing a precedent, or ruling (check the arts law quote for exactly that observation).

So maybe someone could find a specific law, or ruling. But for now, industry practice is what I can pass on, which is that you should get a model release for anyone being featured in your imagery.

One very specific guidance is from the Australian Copyright Council:

A person’s image is not protected by copyright. However, in some cases, using a person’s 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, it’s a good idea to get a “model release” from that person so you won’t 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.

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, it’s generally a good idea to get a model release from the people you have photographed. If it’s 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 person’s photograph. However, in some circumstances, you may be required to comply with the National Privacy Principles in the Privacy Act 1992 (Cth).

And here is the source for that quote :
http://www.copyright.org.au/informat...cit069/wp0136/

And finally:
http://www.privacy.gov.au/

Where there is a multitude of papers (pdfs) on the subject of restrictions, and future restrictions of people publishing photographs of people without the individuals consent.

HTH

[reaction]

There was a buy in the mall with a video, taking a movie of the morning rush. Do they have to get releases to use that video? Cuz they didn't.

[kiwi]

The biggest confusing area to me is really the definition of what is "commercial use"

Thsi is the resource that I think explains this the best in Australia, well, what I have found so far anyhow. I think it's pretty clear.

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

[kiwi]

There was a buy in the mall with a video, taking a movie of the morning rush. Do they have to get releases to use that video? Cuz they didn't.

Totally depends on what they do with it. The other issue here is that the Mall is private property probably.

[maccaroneski]

The biggest confusing area to me is really the definition of what is "commercial use"

Thsi is the resource that I think explains this the best in Australia, well, what I have found so far anyhow. I think it's pretty clear.

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

Kiwi, if I get some time I will have a crack at it.

William I am a pro BTW, and no offence taken, although I practice in IP law as it relates to software.

There is nothing inconsistent in what William, kiwi or I have said above. If you go behind the first PDF to the next one Unauthorised Use of Your Image, you'll see that there are three "actionable" areas.

Defamation

The publication of a person’s photograph without their consent is not in itself proof of defamation. The unauthorised use of the image would need to either lower the public’s estimation of the person, expose the person to hatred, contempt or ridicule, or cause the person to be shunned or avoided.

The Trade Practices Act

The mere use of a person’s image is unlikely to be found to mislead or deceive under this area of law unless that person is a celebrity or well known endorser of products.

Passing Off

To succeed in an action for passing off the complainant must have a reputation and there must be a misrepresentation by the defendant in relation to the business which causes damage or the likelihood of damage to the business.

So, under the current state of the law, if you took a photograph of me, and it ended up on a billboard advertising "Sydney Tourism" (or something such) there is not a single thing I could do about it. But that is because I know my own circumstances HOWEVER...

There is I think one distinction that I am trying to make, and that is between "conduct that means you are less likely to offend the law" and "conduct that actually breaks the law". I am writing all of this because I think that an understanding of the underlying principles is just as, if not more, important than repeating to yourself 100 times "Must get model release".

In my opinion, obtaining model releases is a matter of prudence rather than a matter of requirement, as far as complying with the law goes - however it is a matter of risk mitigation / management. In my example above, how does Sydney Tourism, to whom you have sold the shot you have taken of me, know that I don't have a business wherein I am the fact of Melbourne Tourism? Or that in Perth I appear on local television extensively endorsing local car yards as a result of my 16 straight local go-karting championships?

Thus is it prudent for an advertiser to ensure that you hand over a model release with any shots you are selling to an advertiser, but the absence of a model release, and subsequent publishing of a photo in an advertising campaign, is not in an of itself illegal - it just eliminates the risk that they might be breaking the law - or at least secures an indemnity from the photographer.

Now if you want to sell your images to someone for advertising purposes, sure, they will insist on a model release, and prudently so, however if you want to take some snaps of people in a park (whether known to them or not) and they are not shooting drugs, hitting a dog with a stick or something else which might damage their reputation, and then sell those shots at a local market, then go for your life.

Consequently it is also prudent for someone running a comp to ensure that entries are submitted with model releases.

Kiwi I know you've had specific advice in this regard, and would be interested to know how, or if, this conflicts (but I also understand why you would be reluctant to share any of that), but as I say i think we are all actually in agreement.

Disclaimer: this is all meant to represent a general discussion and should not be taken as specific advice for your situation, for which you should get professional advice.

Note: I find this sort of discussion really interesting - particularly around rights to privacy and image rights (or lack thereof in Australia, anyway).

[campo]

Something else for consideration:

There are also laws that override the standard public/private rules as this thread has been discussing.
Two examples of rather prevalent ones are to do with things like child protection & witness protection etc. I photographed a wedding where the clients were more then happy for me to use most images for advertising etc but not all due to the fact that some of the children were associated with child protection/restraining orders for their own protection.

If I'm going to put pictures of people up on my website (family/friends included), I ALWAYS ask permission and also get them to sign a release form prior to me displaying them.

[kiwi]

OK, yes, Im ok with the above

My personal circumstances, and Id expect this is very similar to a lot of sport and event photographers, is that it's not often possible to get model releases for every player in a match, or carnival, or at the Olympic games (I wish)

But, my understanding is neither me selling or publishing in my context I believe is considered commercial use. I have had this discussion with William previously when I disagreed with AIPP's reaction to a compliant by a parent. and with the Police, and also the guy behind 2020, and I think that I am OK selling these photos from my website, or onsite "gallery" style, and having these photos used in the local newspaper etc as editorial content. Everything I have seen and read from here and overseas supports this view. I can not locate any case law on the matter at all.

There is a grey area if I were selling large volumes (eg 2000 postcards of a player maybe).

To mitigate risk I also only use my sons in brochures and promotions of my photography as I do not have model releases. I also say on my website based on advice that William helped me with that to further diminish any claim that photos are for commercial use that only players and their families can purchase photos and that they must be purchased for personal and non-commercial use only. As a new member of AIPP I do intend to discuss and get clarification with them again on this topic.

I TOTALLY agree that if possible get a model release. It's the prudent way to protect for future claims.

[maccaroneski]

Incidentally here's an article you might be interested in referring to the Ricky Ponting matter I mentioned above:

http://www.abc.net.au/rn/sportsfacto...07/2011128.htm

[campo]

I was asked to shoot at a sporting event and I pointed out these issues. Before the event, the organisers added a term to the entry forms for players saying 'you may be photographed and your photos used...' etc which I considered adequate for the purpose of me taking a few pictures and handing them over to the event organiser.

[kiwi]

Yes, I do that too with "my" club and their carnivals.