Photography 101: A guide to not getting sued

It’s a great time to be part of the South African creative industry. Start ups are kicking off left, right and centre, our music scene is booming, and artists have become increasingly multifaceted. Of course this means that now more than ever, creative professionals need to get to grips with the legal side of things, and that’s where it can get a bit tricky. Fortunately, Legalese exists to help you out.

Ever looked at a contract and found the rhetoric near indecipherable? Or maybe you’ve shied away from putting some work out into the world for fear of copyright technicalities. Legalese are the ones who will help you with that. With a background in both music and public law, founding member Eitan Stern merged the two industries to create the creative legal agency which aims to provide legal advice to local artists, but without all the complicated jargon.

In response to the loads of questions that get asked about the ins and outs of the law around taking pictures and using them for any purpose, the team at Legalese have prepared a detailed and beautifully laid out breakdown of common and slightly tricky issues. Whether you’re a photographer figuring out who’s taking your work for granted or you’re trying to make sure you aren’t using someone’s work illegally, this guide is for you.

Here we take a look at 5 highlights from that guide:

Who owns the copyright in a photo?

The general rule is that the person who takes the photo owns the copyright in the photo.
There are however exceptions to this rule:

  • If the photo is commissioned (i.e. someone pays you to take the photo).
  • If you take the photo as part of a job you are getting paid to do (i.e. your employment).
  • If you are not the person responsible for the composition of the photo, but merely the person who took the photo.

How do I get permission to use a photo?

Permission can be granted in various forms such as written permission, a license of use or some sort of a public license such as creative commons.

All permissions, with the exception of exclusive licenses which must be in writing, can be given verbally. The problem however is that if anyone ever denies that they gave you verbal permission, it may be hard to prove that it actually happened. So writing is always best.

That being said, you don’t need a whole formal contract. If it’s just a simple permission with no payment, then a clearly written email should do the trick. 

Am I allowed to take pictures of a person in a public space?

Generally speaking, you are allowed to take photos of people in a public space. Merely taking their photo does not infringe on that person’s right to privacy. You should assume that by being in public, people may take photos of you. It is in the publication of the photo that issues arise.

While you may be allowed to take photos of people in public, you would not be allowed to publish those photographs, or use them for any commercial gain, without the permission of the people in the photo. Doing so may infringe on those people’s right to privacy or dignity.

However, if someone is in a public setting in which he/she has a reasonable expectation of privacy, then the answer changes and you would not be allowed to take pictures of that person. You would then need their permission.

What if I put my photo on a social media platform?

It depends on the terms and conditions of each social media site. Most sites will have their own terms and conditions that govern what one can legally expect when posting photos. None of the platforms regulate what someone can do if they take a photo off the platform. Instead they regulate what someone can do with photos on the platform. As a general rule, if you post your photos to social media, you should assume those photos are going to be shared by others.

Facebook: When posting a photo on Facebook, you grant Facebook “a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any intellectual property content that you post on or in connection with Facebook”. Essentially, you are giving Facebook the right to use your photo for whatever it pleases. However, if you consider how Facebook actually works, this license just gives them permission to allow people to share your photo on their profiles. The likelihood of Facebook downloading and selling your photos is slim. Possible, but slim. (More social networks covered in the main guide.)

What are moral rights?

Moral rights concern the relationship between authors and their work. These rights remain with the author, even after the copyright has been transferred or licensed. As a result, the author of a work can object to any distortion, mutilation or other modification of the work that hurts the photographer’s honour or reputation.

For example, if you only take photos in black and white, you may object to a copyright owner converting your photo to colour in a way that would distort your work or your reputation. In addition the author has the (moral) right to be named as the author of the work.

Browse through Legalese’s photographer’s guide in full here.

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