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25.11.10

photography and the law

Prohibition_of_photographingSource : Wikipedia

  The following article is a partial copy of "Photography and the law in United Kingdom" on Wikipedia, the full article is available here.
  Another article specifically for Ireland may be found on www.digitalrights.ie (short extract at the end of this post).

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  Reactions to photography differ between societies, and even where restrictions on photography are not covered by statute, code, or judicial precedent, there may be resistance to the taking of photographs by individuals or groups. The breach of the social norms can result in opprobrium, coercion, danger, and violence, and as such should be noted and respected.

  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.


Legal restrictions on photograph

  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. [...]

  Persistent or aggressive photography of a single individual may come under the legal definition of harassment.

  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. Taking a photograph in a court can be seen as a serious offence, leading to a prison sentence. [...]

  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. [...]


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. Whilst photographs are classified as artistic works, the subsistence of copyright does not depend on artistic merit. The owner of the copyright in the photograph is the photographer - the person who creates it, by default. 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. [...]

  Copyright in a photograph lasts for 70 years from the end of the year in which the photographer dies. 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. [...]


Infringement

  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. [...] 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.

  However, the subject matter of a photograph is not necessarily subject to an independent copyright. For example, in the Creation Records case, 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. 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. 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. [...] Secondly, it is argued that the protection of photographs as artistic works leads to bizarre results. 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 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. [...]

  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. 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.


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. [...]

  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.

  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. [...]

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  Below is a short extract of Digit Rights Ireland - Photographer's Rights :

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Photographs in a Public Place

  [...]You are not allowed to harass people in the course of your photography – stalking someone, or repeatedly blocking their way to take a photograph of them could be construed as harassment; simply taking a photograph of them probably won’t. Taking photographs of people in public is generally allowed – however, an exception is made where the subject would have a reasonable expectation of privacy. You’re perfectly entitled to take a photograph of someone walking down the street – but hiding in a tree to take a photo of them in their home may get you into trouble.

  You are not allowed to obstruct movement on the highway (roads, footpaths, cycle paths etc), or the work of a police officer, while taking photographs. Whether you are regarded as obstructing will depend on the situation, and you will generally be asked to move along by the police, if they view your behaviour as obstructive. If you refuse to do so, or persist in obstructing the highway, however, you may be arrested.[...]

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