Taking and using photographs for commercial purposes

In Australia, the law of Defamation and the area of “passing off” under the Competition and Consumer Act protect the unauthorised use of an image.

But unlike other countries, Australia does not have publicity or personality rights which protect the unauthorised use of a person’s image.

The use of a person’s image without their consent is not in itself proof of defamation; it would need to lower the public’s opinion of the person, expose the person to hatred, contempt or ridicule.

Andrew Ettingshausen successfully sued HQ magazine, claiming a picture which was taken and published without his knowledge held him up to ridicule and suggested he was an unsuitable person to fulfil his role as a rugby league junior promotions officer. Even though he earned his living as a model, he said he had never posed naked.

Under the Competition and Consumer Act, the mere use of an image is unlikely to mislead or deceive unless the person is a well known personality or linked to another provider goods and services.

For example, the Olympic swimmer Kieran Perkins successfully sued Telstra when the company, without consent, used a photo of Perkins wearing a swimming cap which carried the Telstra logo with a caption suggesting that he preferred Telstra to Optus. The Court held that the advertisement was misleading and deceptive as Perkins had never made a statement to that affect.

Taking photographs in a public place

Taking photos in a public place of people and building without consent is generally acceptable although there are some exceptions.

Photographing people for a commercial purpose

When taking photos of people for commercial purposes such as outdoor restaurant you should ensure that you obtain a release from those patrons who appear in the photograph to make certain they do not object to their image being used to promote the business.

Photographing Works of Art

Permission should first be obtained from the owners of works of art, such as sculptures, paintings prior to photographs being taken for commercial purposes as they have protection under the Copyright Act.

Under the Copyright Act there a few exceptions for example, the taking and publishing of a photo of sculpture or work of artistic craftsmanship which is permanently placed in a public space, however this does not apply to some other public art, such as murals.

Landmarks, buildings, monuments

Under copyright legislation there are provisions which allow photographs to be taken of works such as buildings, models of buildings, sculptures and other works of artistic craftsmanship.

Conversely, public spaces such as Darling Harbour, Circular Quay, The Rocks and Luna Park and surrounding foreshore areas have restrictions placed on the commercial use of their images without first seeking approval from the Sydney Harbour Foreshore Authority. Also, under legislative requirements permission must be gained for Sydney Olympic Park .

A number of Local Councils have also adopted measures whereby permission must be obtained prior to photographs for commercial purposes being taken. One example is Waverly Council requires photographers to obtain a permit to take photos of publicly owned areas such as beaches and parks and even cemeteries.

Commonwealth Reserves and Parks

Similar to the requirements of local governments, under the Environment Protection and Biodiversity Conservation Regulations there are restrictions of the taking of commercial photographs in various parks including Kakadu National Park, Australian National Botanic Gardens, Christmas Island National Park, Norfolk Island National Park, Commonwealth Marine Parks and Reserves.

Commonwealth and State Government property

Under the Commonwealth Defence Act is illegal to take any photos of defence property. Other government properties such as power stations and railway yards fall into this category as well.

Can taking photos be a criminal offence?

There are a number of State based Acts which make it illegal to photograph a person or persons without their consent when they may be involved in a personal and/or private activity such as using a bathroom or a engaged in a sexual act.

Feature image via SMH