I have spent a lot of time researching the laws affecting photographers and the photographed public in South Africa. As it happens there are not that many photography laws to note. I will go through the really important ones that affect photographers and people being photographed. It is really important, especially for South African Photographers, due to the difference to International Law.
Privacy and Trespassing Laws
As a photographer you have the right to take photos of anyone or anything that can be seen from a public area. So taking photos from streets, parks, concerts or sporting events is permitted. Any person in these areas has waivered their rights to privacy and all allowing themselves to be photographed. Nobody can stop you from taking photos in a public area even if you are taking photos of private property that can be seen from a public area. Obviously, people that have closed themselves up in private places such as toilets, change rooms and private residences should not be photographed.
There are some apparent public areas which are privately owned such as outdoor shopping centres where you will be stopped by security if you are taking photographs without permission. Shopping centres are not public areas and have their own rules. We will get back to this
Photographers need to be aware of by-laws in certain areas that restrict the use of use of the area as a shooting location for commercial purposes.
It is generally accepted that the use photographs of people for personal purposes and including news reports, art, information, education and politics is within the rights of the photographer.
However, any work that you intend to use commercially must have signed model releases even if the subject is a public figure or celebrity that was photographed in a public place. So it goes without saying any unauthorised commercial use of a person’s photograph would be considered illegal.
Photographers should bear in mind that even if they are within their rights to take the photograph, sometimes it is just not appropriate. So don’t become that creepy guy hiding behind a tree taking photos of children in a park. You are likely to meet resistance.
As previously mentioned there are privately owned areas such as shopping centres that have a right to admission and/or ‘no photography’ policy.
If you plan to take photographs in any of these types of areas it is best to get permission from the management of the establishment and include a location release if you intend to use the photographs commercially.
If you do not have permission, the security guards in these areas have the right to stop you from taking photographs. They also have the right to ask you to leave. They cannot, however, confiscate your equipment, delete or destroy you images, or detain you.
You are not trespassing by taking photos without permission but if you are asked to leave and you do not, that is trespassing and you can be arrested.
Other areas to bear in mind are sports events or any event where tickets are sold. The tickets will normally be sold with conditions attached. In most cases the conditions will include restrictions on photography. Security guards at these events will most likely ignore small cameras or mobile phones but will not allow advanced DSLRs with detachable lenses. There are a number of reasons for this including advertising, commercial and trademark issues that need to be considered. Once again, the security personnel at these events have the rights to deny you admission or request that you leave your camera at the gate.
The South African Copyright Act of 1978 protects the intellectual property of photographers and other people that have created original works. It is extremely important for photographers to understand their intellectual property rights.
Copyrights are difference to other intellectual property as such as patents or trademarks. Copyrights are automatic and do not need to be registered. You are not required to add a copyright logo to your works but if you do it just serves as a reminder.
A copyright is valid for 50 years from when the image was made public first published whichever is longest.
South Africa’s copyright laws pertaining to ownership of originally created works is different to international law. If a photographer is commissioned and paid for works to be created the client owns the copyrights to those photographs, unless it is agreed upon beforehand that the intellectual rights to the photographs remain with the photographer. This becomes contract law. Internationally the copyright is automatically owned by the creator whether it was commissioned or not.
You could give your client exclusivity for a period so that they are confident that the photographs will not be used by anyone else while they are using them on their campaign. This should also be agreed upfront.
When entering competitions or contests make sure you are aware of their terms and conditions. Some competitions require you to relinquish your intellectual property rights so that your photo is owned by the competition organizer. If you enter a competition and they do have this condition make sure that you are happy with it before submitting your images.
Also be aware of the conditions attached to submitting your images to imaging competition websites and social media sites. I am aware that they are conditions on one particular social media site that allows them to sell your photographs even if they were not commercial photographs. Even worse is that you could be liable for legal costs of your photo being used if the user is sued. And this is not the social media site you were thinking about.
What we really need to know is that photographers have rights and members of the public have their rights.
When a photographer is out and about know what is public and what is private and if it feels wrong to take a photo rather don’t do it.
If you are not sure if you need permission it is better to ask first but be careful who you ask because generally an ignorant person will say no because it’s easier than finding out the facts.
If you intend to use your photographs commercially make sure that you have all the appropriate legal releases.
Also know that if you give your intellectual rights away the owner of the photograph can use the photo any way they like all over the world and you will never see a penny of royalty income.
Read the terms and conditions for any place that you plan to make your image public including competitions, websites and social media sites. The last thing you want, as a struggling South African photographer, is to receive an invoice for the use of one of your own photos.
I have researched this information myself and with the help of information online and from other photographers. I am NOT a lawyer and do not have any legal experience in the above issues. The information I have provided should be used as a guideline to research your own facts. Please also refer to the websites disclaimer.