One of the most significant changes brought about in the 21st century is the decline of photographers and photography studios. They've both been replaced; by camera phone users and bathrooms.
One good product of this is that now, anybody can be a photographer. This also leaves us with a dire problem. That is, now, anybody can be a photographer.
Let’s cut the 3200-word diatribe on Instagram short. Whether you’re for or against social media, anybody out and about with a camera needs to know the law surrounding these activities. Maybe you’ve finally expanded your interests away from the thousands of filtered sunset / selfie / avo-on-toast photographs you’ve been taking. If you have, and you point a camera at another person, chances are they may not like it all that much.
So, we need to take a closer look at your rights as a photographer, your rights as the subject of a photograph and what the law says you may and may not do.
The laws surrounding photography, and the rights to the photographs we take, have become a contentious issue not only in South Africa, but all around the world. Few of our laws pertain to photography directly. In fact, the only specific restriction placed on what may not be photographed by government is related to anything classified as national security. This could be military installations or infrastructure such as police stations, airports, bridges, consulates or border crossings.
These days most people have a camera in their pocket, able to whip it out at any time and snap a shot of their food, of famous landmarks, of interesting-looking objects, and of your children.
People take and share more photographs now than ever before, in a variety of ways, including social media. We’re constantly flooded with images of strangers, co-workers, employees, attendees, celebrities, customers and friends or family.
One day, you may anger a person you’ve photographed without permission. They may threaten to harm you or smash your camera, or even have you arrested.
So, before we get into the basic ethics of it – what does the law actually say? In South Africa, any person may photograph any other person, without their permission, in public spaces. These people may or may not be the sole focus of your photograph. The emphasis here is on the word public.
Street photographers, for example, are free to take photos of anyone or anything in the streets or parks. They do not need your consent. Even if you happen to be on private property at the time, let’s say on the balcony of your Sea Point apartment, anybody walking by on the public walkway outside may take your picture.
Because the laws surrounding photography in our country, specifically, are so often vague, we have to have a look at trespassing, fair use, copyright and privacy laws laws, and interpret them as best we can to fit the situation.
Privacy laws permit a photographer to take pictures in any public space. This includes anything which can be seen from a public area. These laws make things like Google Street View possible (there was some controversy surrounded the project, however, concerning the elevated position of their cameras which enables Google to shoot over walls).
Enjoy sunbathing on your veranda? ‘Nuff said. Photographers have broken no laws by photographing you, they don't have to explain themselves, they don't have to show you the photograph and they don't have to identify themselves. That photo belongs to them now, and it is their personal property.
You, as the subject, may not threaten them or physically restrain them. That's against the law. By appearing in public areas, or within the range of a zoom lens in public areas, you essentially waiver your right to anonymity or privacy.
You, as a member of the public, only have rights when you have secluded yourself to a place where privacy is deemed a reasonable assumption. Such as bathrooms, changing rooms, medical facilities or inside your home, hiding in your wardrobe.
It is also generally accepted to use images of anybody for personal or fair use purposes. This could include news, satire, creepy scrapbooks or works of art, which you could publish and sell without the subject's permission. For this reason, people who enter into a career of politics, for example, waiver their rights to privacy and publicity. These people are frequently used in newsworthy purposes without any compensation.
If you're planning on selling the actual photograph to a stock photo agency, or use it to create an advertising campaign, for example, then you will need to get signed permission from the subject, because individuals have sole rights to their persona being used for commercial promotion. Even if they were photographed in a public space, and even if they are a celebrity or public figure. Any unapproved commercial use of your name, image, likeness, reputation, or any other identifiable facets of your identity would be considered illegal.
This last point is important, as it is almost the only way to prevent people from photographing your children in public. If they want to use that image for any commercial gain whatsoever (even improving their status as a photographer), they will need permission from the parents. If it's for their own private collection, however, as disturbing as that is, there isn't much that you can do about it except confront them, and demand that they cease.
This is thanks to a set of bylaws that provide exceptions to the standard rules. Privacy is considered personal and individual. If somebody expresses a wish for privacy, the act of stating that wish affords protection. Once they voice that desire, you have to comply.
And lastly, you may not use any image in a way that would misrepresent the subject. You may not publish a photograph of a person in any context that states or implies anything untrue about the subject. This is considered an act of libel, and the subject could take legal action.
As photographers leave the public domain and enter private property, they become subject to rights of admission. Private property could include a shopping mall or a casino, or scaling somebody’s back wall.
Luckily, for people who wish to avoid being photographed, many of these places may appear to be public, but they are not. Many of the places where people gather in South Africa are privately owned. Two examples are the V&A Waterfront in Cape Town and Melrose Arch in Johannesburg.
You might find 'No Photography' signs all over the entrances. In this case, they have the right to prevent you from taking any photos and may ask you to leave the premises.
Any venue that charges you an entrance fee, such as museums or stadiums, usually sell tickets with terms and conditions attached. This may include no photography as a condition of entrance. This isn’t entirely unreasonable – they simply want to prevent images being published of something that other people had to pay to see. There may also be Trademark issues and laws involved, particularly at sporting events.
One important note is that nobody may confiscate your equipment or destroy images or detain you in any way. If you do not leave when asked, though, they may lay charges against you in accordance with the trespass law. Whether it concerns a shopping mall, a private residence, a hotel, business or even a lobby, the act of trespassing is illegal.
In landscape photography, for instance, it’s a good idea to meet the farmer of the lands before photographing them. With crime and farm murders so prevalent in SA, you don’t want to be shot in the back whilst photographing the mielie fields. What a depressing way to die.
Copyright only applies to physically manifested work. This is the end product, whether it be a photograph or a digital file. Copyright generally does not apply to a thought, an idea or a concept for an image.
Somebody may take your concept and turn it into physical, material form – and the rights to that image will be theirs. South African law differs from international law with regards to some aspects, in that “commissioned photographs are owned by the commissioner (client)”.
This means that freelance photographers have no rights to their work. Though a contentious issue, it can be sidestepped by mutual agreement between the parties, even if only verbal. Because contract law overrides copyright law, parties can be held to the negotiated agreement.
Copyright is automatic, in that you do not need to take any action to guarantee your work is protected by the law. Adding that little copyright logo to an image (©) should be accompanied by the owner’s name and the year the image was published. The logo chiefly serves as a reminder that the creator reserves all rights on the usage of said image, and tells interested parties who to contact should they want to obtain rights for the image.
Copyright is valid for 50 years from when an image was made public.
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