[Commercial

photography]
[Pragya]
Commercial photography
• In certain locations, such as California state parks,
commercial photography is subject to insurance requirements
and usually also requires a permit[41]. In places such as the
city of Hermosa Beach in California, commercial
photography on both public property and private property is
subject to permit regulations and possibly also insurance
requirements[42].
• At the Chesapeake and Ohio Canal National Historical Park,
commercial photography requires a permit under certain
circumstances[43]. For photography that involves the
advertising of a commercial product or service, or
photography that involves sets or props or models, a permit is
required[43]. In addition, if the photography has aspects that
may be disruptive to others, such as additional equipment or
a significant number of personnel or the use of public areas
for more than four hours, it is necessary to obtain a permit[43].
If a photographer or related personnel need to access an area
during a time when the area is normally closed, or if access to
a restricted area is involved, the photography requires a
permit[43]. For commercial portrait photographers, there is a
streamlined process for photography permits[43] In the case of
National Park system units, commercial filming and/or audio
recording requires a permit and liability insurance[44]. Still
photography is sometimes subject to the permit and insurance
requirements[44].
• If a photograph shows private property in such a manner that
a viewer of the photograph can identify the owner of the
property, the ASMP (American Society of Media
Photographers, Inc.) recommends that a property release
should be used if the photograph is to be used for advertising
and/or commercial purposes.[45] According to the ASMP, a
property release may be a requirement in such a situation[45
1> Photography and the law

Jump to: navigation, search

A "No Photography" sign, commonly placed in properties

where the owner objects to or it is illegal to take
photographs (though in some jurisdictions, this is not a
legal requirement).
The examples and perspective in this article deal
primarily with English-speaking territories and do not
represent a worldwide view of the subject. Please
improve this article or discuss the issue on the talk page.
This article is in need of attention from an expert on
the subject. WikiProject Law or the Law Portal may be
able to help recruit one. (January 2009)
It has been suggested that Legality of recording by
 civilians be merged into this article or section. (Discuss)

Photography tends to be protected by the law through

copyright and moral rights. Photography tends to be
restricted by the law through miscellaneous criminal
offences. Publishing certain photographs can be restricted
by privacy law. Photography of certain subject matter can
be generally restricted in the interests of public morality
and the protection of children.
Contents
[hide]
• 1 United Kingdom
o 1.1 Legal restrictions on photography

o 1.2 Legal protection of photographs

 1.2.1 Copyright

 1.2.1.1 Immoral works

 1.2.1.2 Public interest generally

 1.2.1.3 Infringment

o 1.3 Photography and privacy

• 2 United States
o 2.1 Public property

o 2.2 Private property

o 2.3 Privacy issues

o 2.4 Commercial photography

o 2.5 Other issues

• 3 Other countries
o 3.1 Sudan

o 3.2 India

• 4 See also
• 5 References
• 6 External links
2> United Kingdom
Legal restrictions on photography
In general under the law of the United Kingdom one cannot
prevent photography of private property from a public
place, and in general the right to take photographs on
private land upon which permission has been obtained is
similarly unrestricted. However a landowner is permitted to
impose any conditions they wish upon entry to a property,
such as forbidding or restricting photography. Two public
locations in the UK, Trafalgar Square and Parliament
Square have a specific provision against photography for
commercial purposes,[1] and permission is needed to
photograph or film in the Royal Parks.[2]
Persistent or aggressive photography of a single individual
may come under the legal definition of harassment.[3]
It is a criminal offence (contempt) to take a photograph in
any court of any person, being a judge of the court or a
juror or a witness in or a party to any proceedings before
the court, whether civil or criminal, or to publish such a
photograph. This includes photographs taken in a court
building, or the precincts of the court.[4] Taking a
photograph in a court can be seen as a serious offence,
leading to a prison sentence.[5][6] The prohibition on taking
photographs in the precincts is vague. It was designed to
prevent the undermining of the dignity of the court, through
the exploitation of images in low brow 'picture papers'.[7]
Photography of certain subject matter is restricted in the
United Kingdom. In particular, the Protection of Children
Act 1978 restricts making child pornography or what looks
like child pornography.
It is an offence under the Counter-Terrorism Act 2008 to
publish or communicate a photograph of a constable (not
including PCSOs), a member of the armed forces, or a
member of the security services, which is of a kind likely to
be useful to a person committing or preparing an act of
terrorism. There is a defence of acting with a reasonable
excuse, however the onus of proof is on the defence, under
section 58A of the Terrorism Act 2000. A PCSO cited
Section 44 of the Terrorism Act 2000 to prevent a member
of the public photographing them. Section 44 actually
concerns stop and search powers.[8]
It is also an offence under section 58 of the Terrorism Act
2000 to take a photograph of a kind likely to be useful to a
person committing or preparing an act of terrorism, or
possessing such a photograph. There is an identical defence
of reasonable excuse. This offence (and possibly, but not
necessarily the s.58A offence) covers only a photograph as
described in s.2(3)(b) of the Terrorism Act 2006. As such,
it must be of a kind likely to provide practical assistance to
a person committing or preparing an act of terrorism.
Whether the photograph in question is such is a matter for a
jury, which is not required to look at the surrounding
circumstances. The photograph must contain information of
such a nature as to raise a reasonable suspicion that it was
intended to be used to assist in the preparation or
commission of an act of terrorism. It must call for an
explanation. A photograph which is innocuous on its face
will not fall foul of the provision if the prosecution adduces
evidence that it was intended to be used for the purpose of
committing or preparing a terrorist act. The defence may
prove a reasonable excuse simply by showing that the
photograph is possessed for a purpose other than to assist in
the commission or preparation of an act of terrorism, even
if the purpose of possession is otherwise unlawful.[9]

3> Legal protection of photographs

Copyright
Copyright can subsist in an original photograph, i.e. a
recording of light or other radiation on any medium on
which an image is produced or from which an image by
any means be produced, and which is not part of a film.[10]
Whilst photographs are classified as artistic works, the
subsistence of copyright does not depend on artistic merit.
[10]
The owner of the copyright in the photograph is the
photographer - the person who creates it,[11] by default.[12]
However, where a photograph is taken by an employee in
the course of employment, the first owner of the copyright
is the employer, unless there is an agreement to the
contrary.[13]
Copyright which subsists in a photograph protects not
merely the photographer from direct copying of his work,
but also from indirect copying to reproduce his work,
where a substantial part of his work has been copied.
Copyright in a photograph lasts for 70 years from the end
of the year in which the photographer dies.[14] A
consequence of this lengthy period of existence of the
copyright is that many family photographs which have no
market value, but significant emotional value, remain
subject to copyright, even when the original photographer
cannot be traced, has given up photography, or died. In the
absence of a licence, it will be an infringement of copyright
in the photographs to copy them.[15] As such, scanning old
family photographs to a digital file for personal use is
prima facie an infringement of copyright.
Certain photographs may not be protected by copyright.
Section 171(3) of the Copyright, Designs and Patents Act
1988 gives courts jurisdiction to refrain from enforcing the
copyright which subsists in works on the grounds of public
interest.
4> Immoral works
Many cases in which this has been the case in respect of
sexual immorality can be found. For example, in Stockdale
v Onwhyn, the memoirs of a courtesan were denied
protection. However, it is notable that these cases tend to be
quite old, and were decided in the context of a relatively
homogeneous, religious and conservative society.
Stockdale v Onwhyn was, for example, decided in 1826.
Similarly, in Glyn v Weston Feature Film Co (1915), the
plaintiff's sexually explicit novel was adapted into a film.
The plaintiff sued for copyright infringement, but the court
refused to award an injunction or an account of profits. The
court took the view that the book lacked literary merit.[16]
The court found that the work in question was "grossly
immoral in its essence, in its treatment, and in its tendency.
Stripped of its trappings, which are mere accident, it is
nothing more nor less than a sensual adulterous intrigue."
As such, the court refused to enforce a copyright in the
work.
As such, it is open to a court to find that a photograph is
immoral, and, as such not enforce copyright which subsists
in it. However, in a modern, heterogeneous and largely
secular society which values diversity in creative works, a
judge, in full awareness of his limited capacity to assess the
public interest, may be reluctant to find that a work is
sufficiently immoral as to warrant the denial of copyright
protection. Nonetheless, it is possible to think of works
which may nonetheless activate the court's discretion in
such a manner, such as child pornography or posed images
of nonconsensual torture.
The somewhat ironic practical effect of the court refusing
to enforce copyright is not to ban the work in question.
Instead, it prevents the copyright holder from preventing
others from dealing with the work in a manner which is
normally restricted to the copyright holder. As such, in
Glyn, the court did not stop the film maker from profiting
from the film.

5> Public interest generally

The restriction of the ability to deal with a work in certain
ways to the copyright holder can have the effect of
providing a legally sanctioned cloak to information.
Hypothetically, a cult could use the law of copyright to
prevent distribution of their texts, thus protecting the cult
from mockery. The court recognises that there is a right to
freedom of expression. This has been interpreted to involve
the ability to express oneself, and also the ability to receive
information. As such, Hyde Park Residence Ltd v Yelland
(2000), the Court of Appeal accepted that the public
interest could require that copyright not be enforced, where
it was in the public interest that the information be
distributed. In that case, a security company had sued a
newspaper for copyright infringement, when the newspaper
published still images of a meeting between Diana,
Princess of Wales and Dodi Al-Fayed, shortly before the
former's death. On the facts, however, the public interest
defence failed. It was found that the public interest did not,
in that particular case, necessitate the publication of the
photographs themselves. Publication of the information
contained within them would have satisfied the demands of
the public interest.

6> Infringment
Infringement of the copyright which subsists in a
photograph can be performed though copying the
photograph. This is because the owner of the copyright in
the photograph has the exclusive right to copy the
photograph.[17] For there to be infringement of the copyright
in a photograph, there must be copying of a substantial part
of the photograph.[18] A photograph can also be a
mechanism of infringement of the copyright which subsists
in another work. For example, a photograph which copies a
substantial part of an artistic work, such as a sculpture,
painting, architectural work (building) or another
photograph (without permission) would infringe the
copyright which subsists in those works.

The Radcliffe Camera, built 1737-1749, holds books from

the Bodleian Library
Because the right infringed is the exclusive right to copy,
there must be copying, as opposed to independent
recreation of a substantial part. For example, a tourist may
take a photograph which is for all intents and purposes
identical to the picture on the right. However, if the tourist's
photograph happens to be of the same scene, but not a copy
of the Wikipedia photograph, the tourist would not be
infringing copyright. (The building, an architectural work,
is from the 1700s, and as such, copyright does not subsist
in it). Since the photograph is an artistic work, irrespective
of artistic merit, copyright will protect the subject of the
photograph rather than merely the medium. As such, it is
possible to infringe the copyright in a photograph through
non-literal copying. In Bauman v Fussell, for example, the
Court of Appeal held by majority that a painting which
copied the arrangement of two cocks from a photograph
infringed the copyright which subsisted in the photograph.
However, the subject matter of a photograph is not
necessarily subject to an independent copyright. For
example, in the Creation Records case,[19][20] a
photographer, attempting to create a photograph for an
album cover, set up an elaborate and artificial scene. A
photographer from a newspaper, covertly photographed the
scene, and published it in the newspaper. The court held
that the newspaper photographer did not infringe the
official photographer's copyright. Copyright did not subsist
in the scene itself - it was too temporary to be a collage,
and could not be categorised as any other form of artistic
work.
The protection of photographs in this manner has been
criticised on two grounds.[21] Firstly, it is argued that
photographs should not be protected as artistic works, but
should instead be protected in a manner similar to that of
sound recordings and films. In other words, copyright
should not protect the subject matter of a photograph as a
matter of course as a consequence of a photograph being
taken.[22] It is argued that protection of photographs as
artistic works is anomalous, in that photography is
ultimately a medium of reproduction, rather than creation.
As such, it is more similar to a film, or sound recording
than a painting or sculpture. Some photographers share this
view. For example, Michael Reichmann describes
photography as an art of disclosure, as opposed to an art of
inclusion.[23] Secondly, it is argued that the protection of
photographs as artistic works leads to bizarre results.[21]
Subject matter is protected irrespective of the artistic merit
of a photograph. The subject matter of a photograph is
protected even when it is not deserving of protection. For
example, it is possible that Vogue Magazine would be
infringing copyright if they, inspired by a picture taken by a
drunk boyfriend of his girlfriend posing provocatively on a
motorcycle, attempted to recreate the photograph.
Similarly, it is possible that a famous wildlife
photographer, inspired by a cheap snapshot of cheetah at
the zoo, on Flikr, would be infringing copyright if he went
exploring the Okovango Delta in search of a cheetah in a
similar pose. For copyright to subsist in photographs as
artistic works, the photographs must be original, since the
English test for originality is based on skill, labour and
judgement.[21] That said, it is possible that the threshold of
originality is very low. For example, in Walter v Lane,
reporters who transcribed a speech were held to be authors
of the transcription, and owners of a copyright which
subsisted in it. Essentially, by this, Arnold is arguing that
whilst the subject matter of some photographs may deserve
protection, it is inappropriate for the law the presume that
the subject matter of all photographs is deserving of
protection.
It is possible to say with a high degree of confidence that
photographs of three-dimensional objects, including artistic
works, will be treated by a court as themselves original
artistic works, and as such, will be subject to copyright.[24]
It is likely that a photograph (including a scan - digital
scanning counts as photography for the purposes of the
Copyright Designs and Patents Act 1988) of a two
dimensional artistic work, such as another photograph or a
painting will also be subject to copyright if a significant
amount of skill, labour and judgement went into its
creation.[25] As such, the photograph above of the Radcliffe
Camera would be subject to copyright. Similarly, based on
the latter conclusion, it is likely, for example, that if
Wikipedia hosted a scan of, for example, the United States
Constitution, on a UK server, and the scan required skill,
labour and judgement, in handling the document and
processing the digital file, Wikipedia would, if it did not
have a licence, be infringing the scanner's copyright.

7> Photography and privacy

A right to privacy exists in the UK law, as a consequence
of the incorporation of the European Convention on Human
Rights into domestic law through the Human Rights Act
1998. This can result in restrictions on the publication of
photography.[26][27][28][29][30]
Whether this right is caused by horizontal effect of the
Human Rights Act 1998 or is judicially created is a matter
of some controversy.[31] The right to privacy is protected by
Article 8 of the convention. In the context of photography,
it stands at odds to the Article 10 right of freedom of
expression. As such, courts will consider the public interest
in balancing the rights through the legal test of
proportionality.[32]
A very limited statutory right to privacy exists in the
Copyright Designs and Patents Act 1988. This right is held,
for example, by someone who hires a photographer to
photograph their wedding. The commissioner[33],
irrespective of any copyright which he does or does not
hold in the photograph[33] of a photograph which was
commissioned for private and domestic purposes, where
copyright subsists in the photograph, has the right not to
have copies of the work issued to the public,[34] the work
exhibited in public[35] or the work communicated to the
public.[36] However, this right will not be infringed if the
rightholder gives permission. It will not be infringed if the
photograph is incidentally included in an artistic work,
film, or broadcast.[37]

8 > United States

This section does not cite any references or sources.
Please help improve this article by adding citations to
reliable sources. Unverifiable material may be challenged
and removed. (March 2007)

Local, state, and national laws may exist pertaining to

photographing or videotaping. Laws that are present may
vary from one jurisdiction to the next, and may be stricter
in some places and more lenient in others, so it is important
to know the laws present in one's location. Typical laws in
the United States are as follows:
9 > Public property
• It is generally legal to photograph or videotape
anything and anyone on any public property, with
some exceptions[38].
• Taking a photograph while on an airplane is banned in
many places, and many mass transit systems prohibit
taking photographs or videos while on board buses or
trains or inside of stations. Photography is illegal in
New Jersey's PATH Train system. Photography and
videography are also prohibited in the U.S. Capitol, in
courthouses, and in government buildings housing
classified information. Bringing a camera phone into
one of these buildings is not permitted either.
• Photographing or videotaping a tourist attraction,
whether publicly or privately owned, is generally
considered legal, unless explicitly prohibited by
posted signs.