The smartphone has virtually made everyone a photographer. Social media has allowed instant sharing of the photos we take. So what are your rights as a photographer, and what legal issues should you be aware of every time you press the shutter button?

Your Photos are Automatically Copyrighted

Once you take a photo, the photo is copyrighted as yours. In Australia, copyright is automatic as Australia is party to the Berne Convention for the Protection of Literary and Artistic Works. As a photographer, you are afforded all the rights as the individual owner under the Copyright Act, including moral rights such as the right to have your work attributed.

Public and Private Places

You should be aware that there are different restrictions for taking photos on public and private property. If you are on private property, you will need the permission of the owner to take photographs and respect their rights if no photography is allowed. This applies to both people and places. However, note that there are no restrictions on taking photographs of people on private property from a public place.

Photography can also be restricted on public property, depending on your local council. For example, any area included in the Sydney foreshore requires a person to get authoritative permission if they are using a camera for commercial purposes under the Sydney Harbour Foreshore Authority Regulation 2006 (NSW).

Publishing your Photos

If you are publishing your photos, you should be aware of the potential legal issues that may arise. Defamation is one of the most common legal problems that emerges, whether it is defamation to an individual or to a company, and may open you up to civil penalties if found guilty.

Furthermore, consider potential copyright and trademark infringements before publishing your photo. If it contains the logo of a brand, this may trigger an infringement. However in general, taking a photograph of a trade mark will not constitute infringing it, unless you use the photo in relation to the goods or services for which it provides.

Having a Person in your Photo

There is no general right to privacy that protects a person’s image in Australia and no tort of invasion of privacy in Australia. However, if you have taken a photograph of an individual in your photo and this has been posted publicly or in a public forum without the person’s permission, this may breach privacy law.

The most likely circumstances that an individual who is the subject of your photo may stop you from using the photo if it is defamatory or if it is misleading/deceptive about the individual’s reputation. Note that there is state and territory legislation, e.g. the Summary Offences Act 1988 (NSW), which sets out circumstances where an individual’s privacy must be respected. In general, in circumstances where a person would reasonably expected to have privacy, e.g. bathing, it is illegal to take a photo without their permission.

The best rule is always to ensure you have the person’s permission before taking their photo, and particularly before posting anything online or in a public forum. If you have any questions about photographer rights, get in touch with our IP lawyers.

Adi Snir

Next Steps

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