Photography Laws – Both Sides Of The Lens
It may be Instagrammable, but that doesn’t mean you’re allowed to point your camera at it. Photography in SA may not be as easy as you think.
Published: Wednesday, November 8th 2017
The most significant change 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.
Photography Law in South Africa
The laws surrounding photography and the rights to the photographs are a big deal to many people.
Almost everybody has a camera in their pocket at any time. 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, children, customers and friends or family.
You may one day 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 – just in case you missed it.
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.
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 classed as national security. This could be military installations or infrastructure such as police stations, airports, bridges, consulates or border crossings.
Through the application of common sense, though, we can interpret certain copyright, privacy and trespass laws to fit the situation.
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Privacy law permits a photographer to take pictures in any public space. This includes anything which can be seen from a public area. Enjoy sunbathing on your veranda? ‘Nuff said.
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.
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. 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.
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.
There are bylaws, of course, 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.
Because any individual has sole rights to their persona being used for commercial promotion, any work used commercially must have a release signed by the subject. Even if they were photographed in a public space, and even if they are a celebrity or public figure.
So, any unapproved commercial use of your name, image, likeness, reputation, or any other identifiable facets of your identity would be considered illegal.
These laws make things like Google Street View possible. Some controversy surrounded the project, however, concerning the elevated position of their cameras which enables Google to shoot over walls.
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.