Australia

Photographer’s Rights – Australia

In Australia, there is currently no legal rights that protects an individual’s from been photographed. Therefore, a person in the Australian society does not have a right to privacy and can be photographed without consent. The right to take photographs does not contravene any case law or statues and also does not constitute an invasion of personal privacy.  However, Common law doctrines such as nuisance, trespassing, defamation, offensive behavior, and infringement of rights can still apply and impose onus of proof on the photographer.

 

"A person, in our society, does not have a right not to be photographed."

Justice John Dowd in R v Sotheren (2001) NSWSC 204

 

Public vs Private Property

There are no legal restrictions on taking photographs at public places in Australia and Photographers are encouraged to take photographs of the general public. In addition, there is no restriction on taking photographs of people on private property from a public property. (According to Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) there is no freedom from view, so people who are photographed on their property from a public location have no legal claim against you if what is captured in the photograph can be seen from the street. ) When taking photographs on private property, it is essential for the photographer to ensure he/she has permission for entry and photographing on private land. Otherwise, it may constitute trespass of land and Photography may be prohibited or restricted within that property.

 

Criminal Offence

·         Summary Offences Act 1988 (NSW)

·         Crimes Act 1900 (NSW)

·         Surveillance Devices Act 1999 (Vic) & Surveillance Devices Act 1998 (WA)

There are a number of existing criminal laws that address the taking and use of unauthorised images for offensive purposes. Some of these include:

  • use of surveillance devices to record a ‘private activity’ without consent;[1]

  • filming for indecent purposes;[2]

  • making an image of a child engaged in a private act for prurient purposes;[3]

  • making indecent visual images of a child under the age of 16;[4]

  • committing indecent or offensive acts in a public place;[5]

  • child pornography offences;[6] and

  • using a telecommunications network or carriage service to facilitate certain offences.[7]

 

Commercial Use

Commercial use is commonly defined as use that is intended for commercial gain, which includes any commercial, promotional, advertising and merchandising purposes.

There are no law imposed on personal use of photographs, but it is necessary to obtain authorization for photographs that will be used for a commercial purpose. A Model Release form should be signed by the subjects to ensure appropriate authorization will be provided for the photographer.

I have included samples of Model Release Forms for both Adult and Minor, note that it does not necessarily address all legal issues or requirements of the photographer. Please download a model release form that best suit to your needs.

Getty Images Model Release Form

(Here is what I use for the authorization of my photos to grant permission to Sell on Getty Images)

https://contribute.gettyimages.com/producer/documents/Model_Release_English_Dec_2008.pdf

 

Government Property and Famous Landmarks

It is generally permitted to take and publish photographs of buildings, landmarks, sculptures and other craftsmanship: (Copyright Act 1968 (Cth))

However, photography for commercial use is restricted in some areas by councils or authorities:

  •  Sydney Foreshore Area such as Darling Habour, Circular Quay, the Rocks and Luna Park (Sydney Habour Foreshore Authority Regulation 2006 (NSW))

  • Sydney Olympic Park prohibiting the use for commercial purposes and causing annoyance/inconvenience to others. (Sydney Olympic Park Regulation 2001)

  • Other areas that may raise public concerns: swimming pools, beaches, parks, cemeteries, etc. It is advisory for the photographer to check the relevant authority’s website beforehand.

Government may impose restrictions on certain government properties such as railway, power stations and military areas. It is illegal to trespass these areas and may lead to prosecutions.  You should always check the relevant regulations for a location that you are not sure about.

 

Police Enforcement

Police Officers in Australia are generally friendly and do not mind their photos taken. However, when Police Officers are duty to conduct a mission then any intervention/interference to their duty should be prevented thus do not take Photos when officers are carrying out their duties.

When there is unnecessary physical conduct by the police that is unacceptable and/or unreasonable, there is always an option to file a complaint to the NSW Police Commission. Before a photographer files a complaint to the Police Commission, it is suggested to get all the details of the Police Officer/s that you are going to make a complaint along with plenty of evidence for the assault. For example, the identification number and full name from the Police Officer/s along with photos/videos/sounds recorded at the scene.

Here is the NSW Police Commission Complaint page:

http://www.police.nsw.gov.au/services/additional_services/complain_about_a_police_officer

In the case that Photographers is approached by the Police and the Police may ask for personal identification. However, in NSW that Photographer does not have to comply with this request excepted in the case of:

  • where you are in lawful custody, or the police suspect on reasonable grounds that you may assist in the investigation of an indictable offence (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW))

 

Power to Search and Detain

Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), the Police do not have powers to stop, search and detain a Photographer without a warrant unless they suspect on reasonable grounds that:

  • you have in your possession or under your control anything stolen or unlawfully obtained, or to be used in connection with the commission of a relevant offence; or

  • you have in your possession or under your control in a public place a dangerous article that is being or was used in connection with the commission of a relevant offence.

Power of Seizure: Photographic Equipments

Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), the Police do not have powers to seize and detain property without a warrant unless they suspect on reasonable grounds that the property:

  • is stolen or otherwise unlawfully obtained; or

  • may provide evidence of a commission of a relevant offence; or

  • is a dangerous article; or

  • is a prohibited plant or prohibited drug under the Drug Misuse and Trafficking Act 1985.

 

 

 

 

[1] See, eg, Surveillance Devices Act 1999 (Vic) ss 6–7; Surveillance Devices Act 2000 (NT) s 5; Surveillance Devices Act 1998 (WA) ss 5–6. Not all of the surveillance devices legislation in Australia, however, has a general prohibition on the use of surveillance devices without authorisation or consent: see, eg, in South Australia the prohibition is limited to listening devices:Listening and Surveillance Devices Act 1972 (SA) s 4.

[2] See, eg, Summary Offences Act 1988 (NSW) pt 3B. In some jurisdictions, however, the offence only applies where the indecent material is produced for the purpose of sale: see, eg, Summary Offences Act 1953 (Qld) pt 7.

[3] See, eg, Criminal Law Consolidation Act 1935 (SA) s 63B.

[4] See, eg, Criminal Code (Qld) s 210(1)(f)

[5]See, eg, Ibid s 227(1); Summary Offences Act 1988 (NSW) s 4; Police Offences Act 1935 (Tas) s 13.

[6] See, eg, Crimes Act 1958 (Vic) pt 1 div 13; Criminal Code Act 1924 (Tas) ss 130–130G.

[7]See, eg, Criminal Code (Cth) s 474.14 (using a telecommunications network to commit a serious offence); s 474.17 (using a carriage service to menace, harass or cause offence); ss 474.19–474.20 (using a carriage service to intentionally access, transmit or make available child pornography material); ss 474.22–474.23 (using a carriage service to intentionally access, transmit or make available child abuse material).

Australian Model Release Form (AIPP)

Model Release Form


AUSTRALIAN INSTITUTE OF PROFESSIONAL PHOTOGRAPHY LTD A.C.N. 050 167 498 A.B.N. 77 050 167 498
AIPP NATIONAL OFFICE: PO BOX 372, NORTH MELBOURNE VICTORIA, 3051 TEL: 1800 686 696 FAX: (03) 9329 9933
THIS FORM MUST BE SIGNED BEFORE ANY PHOTOGRAPHY IS UNDERTAKEN
______________________________________________________________________
Name of Photographer…………………………………….. Job /Series No…………………
Name of Advertising Agency
Or Client (if assignment)…………………………………… Order No. ………………………
Description of Date of
Photography………………………………………………… Photography …………………..
______________________________________________________________________
I permit the photographer named above and his/her licensees or assignees to use the photograph(s)and/or drawings therefrom and any other reproductions or adaptations therefrom either complete or in part alone or in conjunction with any wording and/or drawings for all uses including publicity and/or merchandising and/or editorial purposes in any country. Unless otherwise agreed the photograph(s) and any drawings or adaptations thereof shall be deemed to represent an imaginary person. No changes to the terms of this model release are accepted unless agreed in writing by the photographer, his/her assignees or licensees or myself.
I understand that I do not have any interest in the copyright to the photograph(s) nor shall I receive any further payment.
I am over 18 years old. (Models who are under 18 years of age must provide evidence of consent by a parent or guardian to this model release.)
Name of Model Agency (if any)
……………………………………………………………………………………..…………
Name of Model (capital letters)
…………………………………………………………………….………………………….
Address of Model
…………………………………………………………………………………………..……
Signature of Model ……………………………………………………Date …………………
Signature of Parent or Guardian …………………………………… Date …………………
(if model under 18)
Witness ……………………………………………………………….…Date …………………
This is a basic Model Release. The AIPP suggests you follow your solicitor's advice for your specific requirements.

 

 

If you require a PDF version of this Form, Please send me an Email.

Model Release for Children Template

Model Release for Minors

  

For valuable consideration I hereby give to ________________________________ [photographer] the absolute and irrevocable right and permission with respect to the photographs that he/she has taken of my minor child in which he/she may be included with others:

a) To copyright the same in the photographer’s name or any other name that he/she may select;

b) To use, re-use, publish and re-publish the same in whole or in part, separately or in conjunction with other photographs, in any medium now or hereafter known, and for any purpose whatsoever, including (but not by way of limitation) illustration, promotion, advertising and trade, and;

c) To use my name or my child’s name in connection therewith if he/she so decides.

I hereby release and discharge photographer from all and any claims and demands ensuing from or in connection with the use of the photographs, including any and all claims for libel and invasion of privacy.

This authorization and release shall inure to the benefit of the legal representatives, licensees and assigns of the photographer as well as the person(s) for whom he/she took the photographs.

I have read the foregoing and fully understand the contents hereof. I represent that I am the [parent/guardian] of the named model below. For value received, I hereby consent to the foregoing on his/her behalf.

Dated: _______________________________________

Minor's Name:__________________________________

Parent or Guardian Name:________________________

 

Signature or Parent/Guardian: _____________________

Address:______________________________________

City:__________________________________________

State/Zip:______________________________________

Phone:________________________________________

Parent’s Email Address: __________________________

Model Release Template

Model Release

  

In consideration of my engagement as a model, upon the terms herewith stated, I hereby give to _____________________________ [photographer] his/her heirs, legal representatives and assigns, those for whom the photographer is acting, and those acting with his/her authority and permission:

a)  the unrestricted right and permission to copyright and use, re-use, publish, and republish photographic portraits or pictures of me or in which I may be included intact or in part, composite or distorted in character or form, without restriction as to changes or transformations in conjunction with my own or a fictitious name, or reproduction hereof in color or otherwise, made through any and all media now or hereafter known for illustration, art, promotion, advertising, trade, or any other purpose whatsoever.

b)  I also permit the use of any printed material in connection therewith.

c)  I hereby relinquish any right that I may have to examine or approve the completed product or products or the advertising copy or printed matter that may be used in conjunction therewith or the use to which it may be applied.

d)  I hereby release, discharge and agree to save harmless [photographer], his/her heirs, legal representatives or assigns, and all persons functioning under his/her permission or authority, or those for whom he/she is functioning, from any liability by virtue of any blurring, distortion, alteration, optical illusion, or use in composite form whether intentional or otherwise, that may occur or be produced in the taking of said picture or in any subsequent processing thereof, as well as any publication thereof, including without limitation any claims for libel or invasion of privacy.

e)  I hereby affirm that I am over the age of majority and have the right to contract in my own name. I have read the above authorization, release and agreement, prior to its execution; I fully understand the contents thereof. This agreement shall be binding upon me and my heirs, legal representatives and assigns.


Print Name: _________________________________                                                         

Signed:______________________________________

 

Dated: ______________________________________


Address:_____________________________________

City:________________________________________

State/Zip:____________________________________

 

Phone:______________________________________

 

Email: ______________________________________