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Originally written for Trespass – March 5th, 2009
It’s about seven in the morning and something about that particular shade of red on the back of your eyelids tells you that now is the time you need to wake up. That perfect moment between “Aw, I could sleep just a little longer” and “Damn, I’m going to miss the train”. So you wind open your eyelids and sit up, your significant other (or the shadow of a past significant other) still asleep in the bed next to you. You dress and watch a rerun of Gretel Killeen making snide remarks about this year’s poor reality TV lab rats, thinking to yourself how good it is not to be watched every second of the day.
And then you’re out in the thick of it. As you turn onto the main drag, a CCTV camera tracks your every move. To be fair, it’s not really looking AT you but watching the place under your feet. You turn into the record store. Yep, there are also cameras here, this time keeping you in line – making sure you spend your hard earned cash, rather than stealing the product of someone else’s. Now we’re down in the train station, and there are cameras here for safety too. Your mind starts racing, maybe there isn’t a way to escape? Maybe Gretel Killeen is just around the corner saying “John, your sales figures are down and, really… striped pyjamas?” and somehow your boss is a huge Big-Brother-series-seventeen-now-in-wide-screen-and-high-definition fan who chooses to fire you because “really…striped pyjamas?”
OK, so maybe that’s a little bit paranoid. There are cameras everywhere but do we really need to watch out for them? There are benefits to succumbing to a belief in a little Orwellian prophecy. The “Big Brother” of the photography world is street photography, one of the controversial topics that has emerged in the artistic world post 9/11. We’re not talking about paparazzi shots here, rather the creative people out there trying to capture their photographic slice of life, unplanned and unashamedly ‘real’. As JPG Magazine wrote in February 2006, “…amateur photographers are the documentarians of real life. People with cameras bear witness to the everyday dramas of ordinary people. We capture our world to help us understand it. We are not terrorists. We are not dangerous. And we are certainly not a threat.’ Now that we are coming up to the eighth anniversary of the September 11 attacks, the paranoia is settling down a little, but for the past few years it’s been a little bit tricky for photographers. So, in order to make things more straight forward, here’s a bit of a layman’s explanation of what you can and cannot do if you decide to snap a photo of people on the sidewalk.
For more information:
Click over to lawyer Andrew Nemeth’s breakdown of the relevant laws. He has also provided a handy PDF file you can print out and take next time you’re out photographing.
Firstly and most importantly, there is the issue of public space. If a photographer is on private property, he is subject to the rules of the owner of that property. The areas which usually cause the most trouble are places like shopping centres, art galleries and entertainment centres. The reason is that they have something (commercial) to protect; usually their products or their own economic interests (i.e. selling footage/photos from a concert would be considered a threat if they wanted to do the same thing “officially’). If caught on private land, the photographer can be asked to leave and must do so if asked. The owners can use “reasonable force’ to support this request. However, the owners cannot legally:
- force the photographer to delete photos (coercion)
- detain the photographer unjustly (false imprisonment)
- remove the photographer with/or threaten acts of violence (assault) OR
- keep any photographic gear belonging to the photographer (theft)
Also, the request to delete photos or cease taking photos is not one that can be invoked retroactively. Once the photos are taken, the owner has no jurisdiction over them. However, if you are on private land when they ask you to stop shooting, you must obey their veto.
However, there is no limit to taking photos of private land, as long as the photographer is standing on public land. Government land is an entirely different kettle of fish because there are laws to do with national security. The issue also becomes a little bit hairy around land which is ‘quasi-public’, places such as shopping malls. In 2006, Melbourne’s Southgate shopping precinct tried to ban photography in and around the centre, going so far as trying to force tourists to delete photos (and if they resisted, to call the police). However, Former Prime Minister John Howard said “I don’t think the terrorist threat in this country warrants that… I’m sure they mean well, but I do think that is going too far.’ (Southgate photo ban ‘over the top’, The Age, July 25, 2006)
Secondly, on public land, Australian Law pretty much guarantees the photographer rights to take photos of anyone and use them for his own purposes. Andrew Nemeth’s website explains that “in Australia the taking and publication of a person’s photograph, without their consent or knowledge, [but within limitations], is not an invasion of privacy, nor is it in contravention of case or statute law. Privacy advocates may disapprove, but in this country it has always been, and for the moment remains, a perfectly legal thing to do.’
The photographer cannot, however:
- Use the photo to sell a product (this extends so far as to include using the photo as the front of a magazine/CD/video, basically any product packaging)
- Use the photo to imply endorsement of a product
- Use the photo for defamatory purposes.
These things all require a standard ‘model release’ which can only be signed by the person included in the photo (except in the case of minors, where a parent or guardian can sign.) Without that piece of paper, the photo cannot legally be used for promotion or advertisement and many stock photography companies (the people who sell images to advertisers) will not take a photo without it included. Last year, telecommunications provider Virgin Mobile was sued because they used images from popular photo website Flickr. A lot of people claimed that Virgin was misusing the Creative Commons license by stealing images for their nation-wide campaign, but it was soon found that the photographers had granted a license on their individual Flickr photos which allowed commercial use. While Virgin’s use of these images was probably not ethical (the original photographers were not asked or even told that their photos were on billboards across Australia) it was technically legal, due to the absence of an All Rights Reserved Copyright Clause.
Handy Tips for avoiding becoming a surveillance ‘liability’:
- Constantly walk behind men wearing glasses and red and white striped jumpers. Your new found “Wally” will entertain the security guards long enough for you to fade into the wallpaper.
- If you’re Spiderman, you can try to remain inconspicuous by scaling walls 30ft above ground level, thus avoiding the camera’s gaze. If you are an office worker without superhuman powers, try climbing with post-it notes on your hands.
This didn’t keep Virgin Mobile out of court however, because the advertising company slipped up in their dealings and failed to realise that they would need model releases for all of the people they included in the campaign. They are now in court because the people involved are suing for commercial use of their likeness, and in some cases defamation (caused by the campaign slogan “virgin to virgin” being applied to a 13 year old Christian girl from America)
Because of Australia’s parliamentary history, we do not have a Bill of Rights. Among other things, we are therefore not guaranteed the ‘Right to Privacy’ which many other nations are. However, remember that just because it’s legal, doesn’t mean it’s safe. The loonie on the street corner may object to your photography and respond with very personal retribution, regardless of the law; so use your common sense.
We may not be in Orwellian hell just yet, but there are certainly many photographers out there and many subjects to be captured so incidents are bound to arise. Enjoy your art but protect yourself by knowing your rights.
Andrew Nemeth’s Legal Breakdown on 4020.net
*Photos Courtesy of Photographer Padawan, super.heavy, and Adam Melancon on Flickr
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