as researched by: robert kjendlie
1
t
2
he general rule in the United States is that anyone may take photographs of whatever they want when they are in a public place or places where they have permission to take photographs. Absent a specific legal prohibition such as a statute or ordinance, you are legally entitled to take photographs. Examples of places that are traditionally considered public are streets, sidewalks, and public parks. Property owners may legally prohibit photography on their premises but have no right to prohibit others from photographing their property from other locations. Whether you need permission from property owners to take photographs while
P
H
O
T
O
G
R
A
P
H
E
R
S
R
I
G
H
T
S
the general rules: on their premises depends on the circumstances. In most places, you may reasonably assume that taking photographs is allowed and that you do not need explicit permission. However, this is a judgment call and you should request permission when the circumstances suggest that the owner is likely to object. In any case, when a property owner tells you not to take photographs while on the premises, you are legally obligated to honor the request.
3
Legal restrictions on photography In general under the law of the United Kingdom one cannot prevent photography of private property from a public place, and in general the right to take photographs on private land upon which permission has been obtained is similarly unrestricted. However a landowner is permitted to impose any conditions they wish upon entry to a property, such as forbidding or restricting photography. Two public locations in the UK, Trafalgar Square and Parliament Square have a specific provision against photography for commercial purposes,[1] and permission is needed to photograph or film in the Royal Parks.[2] Persistent or aggressive photography of a single individual may come under the legal definition of harassment.[3] It is a criminal offence (contempt) to take a photograph in any court of any person, being a judge of the court or a juror or a witness in or a party to any proceedings before the court, whether civil or criminal,
4
or to publish such a photograph. This includes photographs taken in a court building, or the precincts of the court. [4] Taking a photograph in a court can be seen as a serious offence, leading to a prison sentence.[5][6] The prohibition on taking photographs in the precincts is vague. It was designed to prevent the undermining of the dignity of the court, through the exploitation of images in low brow ‘picture papers’.[7] Photography of certain subject matter is restricted in the United Kingdom. In particular, the Protection of Children Act 1978 restricts making child pornography or what looks like child pornography. It is an offence under the Counter-Terrorism Act 2008 to publish or communicate a photograph of a constable (not including PCSOs), a member of the armed forces, or a member of the security services, which is of a kind likely to be useful to a person committing or preparing an act of terrorism. There is a defence of acting with a reasonable excuse, however the onus of proof is on the defence, under
section 58A of the Terrorism Act 2000. A PCSO cited Section 44 of the Terrorism Act 2000 to prevent a member of the public photographing them. Section 44 actually concerns stop and search powers.[8] It is also an offence under section 58 of the Terrorism Act 2000 to take a photograph of a kind likely to be useful to a person committing or preparing an act of terrorism, or possessing such a photograph. There is an identical defence of reasonable excuse. This offence (and possibly, but not necessarily the s.58A offence) covers only a photograph as described in s.2(3)(b) of the Terrorism Act 2006. As such, it must be of a kind likely to provide practical assistance to a person committing or preparing an act of terrorism. Whether the photograph in question is such is a
matter for a jury, which is not required to look at the surrounding circumstances. The photograph must contain information of such a nature as to raise a reasonable suspicion that it was intended to be used to assist in the preparation or commission of an act of terrorism. It must call for an explanation. A photograph which is innocuous on its face will not fall foul of the provision if the prosecution adduces evidence that it was intended to be used for the purpose of committing or preparing a terrorist act. The defence may prove a reasonable excuse simply by showing that the photograph is possessed for a purpose other than to assist in the commission or preparation of an act of terrorism, even if the purpose of possession is otherwise unlawful.[9]
5
What people can do to you? What can a store owner or manager legally do?
If you are on public property, you have the right to be left alone. People cannot badger you to stop taking photos, nor can they threaten you (physically or otherwise, and that includes threatening to call the police). Private citizens, including security guards, do not have the right to confiscate your equipment or to require you to erase your memory cards (or film). They do
10
not have the right to threaten you in order to make you do so “voluntarily.” If you are on private property, the owner of that property (or his representative — e.g., a security guard) can make permission to be on that property contingent upon your compliance. In other words, “Stop taking pictures and erase your memory card or I’m kicking you out.” Failure to abide by
this could make you guilty of trespassing, but the photos you take would probably still be legal. He or she can’t demand you erase your memory card or turn over your equipment. That’s called theft. He can’t threaten you physically or by saying he’ll call the police. That’s coercion. He can’t prevent you from leaving until you comply. That’s kidnapping or false imprisonment.
•
Ask you to stop photographing. Failure to stop could mean you are trespassing.
•
Ask you to leave. Failure to leave could mean you are trespassing.
•
Ask you to erase your memory card as a condition to remaining. You can choose to erase it or leave the property; failure to do either one or the other could mean you are trespassing.
•
Ask you to do stop shooting and leave. Failure to comply could mean you are trespassing.
Law enforcement officials similarly cannot confiscate your equipment without a court order or if they are placing you under arrest. Neither can they destroy your property; that includes deleting images or exposing film; without a court’s permission. Of course, they tend to have muscles and guns, which may make it hard to assert your rights. They also,
11
copyright Copyright can subsist in an original photograph, i.e. a recording of light or other radiation on any medium on which an image is produced or from which an image by any means be produced, and which is not part of a film. [10] Whilst photographs are classified as artistic works, the subsistence of copyright does not depend on artistic merit.[10] The owner of the copyright in the photograph is the photographer - the person who creates it,[11] by default.[12] However, where a photograph is taken by an employee in the course of employment, the first owner of the copyright is the employer, unless there is an agreement to the contrary.[13] Copyright which subsists in a photograph protects not merely the photographer from direct copying of his work, but also from indirect copying to reproduce his work, where a substantial part of his work has been copied. Copyright in a photograph lasts for 70 years from the end of the year in which the photographer dies.[14] A consequence of this lengthy period of existence of the copyright is that many family photographs which have no market value, but significant emotional value, remain subject to copyright, even when the original photographer cannot be traced, has given up photography, or died. In the absence of a licence, it will be an infringement of copyright in the photographs to copy them.[15] As such, scanning old family photographs to a digital file for personal use is prima fa-
6
7
infringement of the copyright which subsists in a photograph can be performed though copying the photograph. This is because the owner of the copyright in the photograph has the exclusive right to copy the photograph. [17] For there to be infringement of the copyright in a photograph, there must be copying of a substantial part of the photograph. [18] A photograph can also be a mechanism of infringement of the copyright which subsists i n another w o r k . F o r e x a m p l e , a photograph which copies a substantial part of an artistic work, such as a sculpture, painting, architectural work (building) or another photograph (without permission) would infringe the copyright which subsists in those works. Because the right infringed is the exclusive right to copy, there must be copying, as opposed to independent recreation of a substantial part. For example, a tourist may take a photograph which is for all intents and purposes identical to the picture on the right. However, if the tourist’s photograph happens to be of the same scene, but not a copy of the
8
Wikipedia photograph, the tourist would not be infringing copyright. (The building, an architectural work, is from the 1700s, and as such, copyright does not subsist in it). Since the photograph is an artistic work, irrespective of artistic merit, copyright will protect the subject of the photograph rather than merely the medium. As such, it is possible to infringe the copyright in a photograph through non-literal copying. In
up an elaborate and artificial scene. A photographer from a newspaper, covertly photographed the scene, and published it in the newspaper. The court held that the newspaper photographer did not infringe the official photographer’s copyright. Copyright did not subsist in the scene itself - it was too temporary to be a collage, and could not be categorised as any other form of artistic work. The protection of photographs in
anomalous, in that photography is ultimately a medium of reproduction, rather than creation. As such, it is more similar to a film, or sound recording than a painting or sculpture. Some photographers share this view. For example, Michael Reichmann describes photography as an art of disclosure, as opposed to an art of inclusion. [23] Secondly, it is argued that the protection of photographs as artistic works leads to bizarre results.
photographer, inspired by a cheap snapshot of cheetah at the zoo, on Flikr, would be infringing copyright if he went exploring the Okovango Delta in search of a cheetah in a similar pose. For copyright to subsist in photographs as artistic works, the photographs must be original, since the English test for originality is based on skill, labour and judgement.[21] That said, it is possible that the threshold of originality is very low. For example,
photographs of three-dimensional objects, including artistic works, will be treated by a court as themselves original artistic works, and as such, will be subject to copyright.[24] It is likely that a photograph (including a scan - digital scanning counts as photography for the purposes of the Copyright Designs and Patents Act 1988) of a two dimensional artistic work, such as another photograph or a painting will also be subject to copyright if a significant amount of
i n f r i n gement Bauman v Fussell, for example, the Court of Appeal held by majority that a painting which copied the arrangement of two cocks from a photograph infringed the copyright which subsisted in the photograph. However, the subject matter of a photo-graph is not necessarily subject to an independent copyright. For example, in the Creation Records case,[19][20] a photographer, attempting to create a photograph for an album cover, set
this manner has been criticised on two grounds.[21] Firstly, it is argued that photographs should not be protected as artistic works, but should instead be protected in a manner similar to that of sound recordings and films. In other words, copyright should not protect the subject matter of a photograph as a matter of course as a consequence of a photograph being taken. [22] It is argued that protection of photographs as artistic works is
[21] Subject matter is protected irrespective of the artistic merit of a photograph. The subject matter of a photograph is protected even when it is not deserving of protection. For example, it is possible that Vogue Magazine would be infringing copyright if they, inspired by a picture taken by a drunk boyfriend of his girlfriend posing provocatively on a motorcycle, attempted to recreate the photograph. Similarly, it is possible that a famous wildlife
in Walter v Lane, reporters who transcribed a speech were held to be authors of the transcription, and owners of a copyright which subsisted in it. Essentially, by this, Arnold is arguing that whilst the subject matter of some photographs may deserve protection, it is inappropriate for the law the presume that the subject matter of all photographs is deserving of protection. It is possible to say with a high degree of confidence that
skill, labour and judgement went into its creation.[25] As such, the photograph above of the Radcliffe Camera would be subject to copyright. Similarly, based on the latter conclusion, it is likely, for example, that if Wikipedia hosted a scan of, for example, the United States Constitution, on a UK server, and the scan required skill, labour and judgement, in handling the document
and
processing
the
9
sources:
12