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.
Copyright laws
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.
In Conclusion
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.
Disclaimer
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.
Hi Steven,
Thank you. This is very useful indeed. I have a question.
What about people that you photography on the streets, and you take their consent before taking photographs (you can see that on my flickr page), but then you are not going to meet them again and if you sell those photographs, how are you going to declare that you had model’s consent?
Or you just take an oath that the model/person/girl/beggar/story-tell on a mountain gave you the permission and that you won’t be sued? I would appreciate if you could please take some time to reply on info@mujahidurrehman.com.
regards
Muji
Hey Muji
The law mentions that verbal agreements count. However it is better to have a written agreement so carry model releases with you. You don’t need any permission to use your photos for personal use, social media or your websites. You can complete an affidavit at the time that you sell, but there is always a small chance that it will end up as your word against theirs. Most people are fine with it but there are always people that would try to benefit from your work but the chances are pretty small and generally worth the risk. Anyway it is good practice to always get something in writing.
I hope this helps.
Steven
Hi Steven,
Thanks very much. Your reply helped. Keep the blogs coming 🙂
regards
Muji
Morning
I would like to know about taking photos of learners at school to be placed in a local newspaper or on a schools website? Do you need consent from parents?
Regards
Luzette
Simple answer… Yes. Photographing children is a very sensitive subject. It is not so much a legal issue as a moral one. With the way the world is, many parents do not want photos of their children anywhere in the public domain even if it is newsworthy. From what I have found it is also not legal to use photos of children to advertise unless you have written permission from their guardian. I will do a follow up article on this subject because it is a big one.
Hi Steven,
I do a lot of work taking photos of DJs and international performing acts both here in SA and abroad.
Most of the time I attend in a press capacity and upload the photos to a public domain for everyone to view for free.
My arrangement with the company (public domain) is that copyright of all images remain mine.
I have gotten some amazing shots over the years and I am dabbling around with the idea to sell the photos as limited edition fine art canvas prints.
A very established American photographer is doing the same and during a meeting with him last year he mentioned that the photographer could reproduce his/her images up to 250 times without having to attain permission of the subject being photographed.
Do you perhaps know if this is true?
Furthermore, could you please elaborate on what you mean with “”using your work commercially” ?
My research seems to indicate that commercial implies that the photo is being associated with a brand, product or event. In other words, a photo is only seen as commercial when being placed alongside or with a product or logo.
So, if I am:
– Selling my photos as limited edition fine art prints
– Not adding any branding to the photos or associating the subject with a particular brand
– Not reproducing photos more than 250 times
Am I in the clear legally?
It is my understanding that the way I am selling my photos fall within the “informational use” realm of the law. (See http://fairuse.stanford.edu/overview/releases/when/ for more info) And that I should have no problem proceeding.
Any chance you could confirm?
Thanks and regards,
Julius
The definition of commercial is broad. Even if you are not selling your photos for cash, if you are using the photos on your website to promote yourself it is commercial use. If you are selling photos (print or electronic) and are deriving personal gain, it is commercial use. There is a lot more to it. I will have to do a follow up when I have researched a bit more.
I am not entirely sure how it works internationally with reproducing your work that is owned by someone else. As far as I know, in South Africa, if you do not own it or have permission you may not reproduce it even once.
Keep in mind thought that all images are placed in the public domain for free and no funds are gained. Furthermore, a lot of the artist and event managers use my photos on their relevant social media sites without compensating me, let alone giving me credit.
Regards,
J
Ouch! Julius I hope you are being well paid.
Hi Steven
I did a shoot for a look book and my images was used by Heineken as an ad for Lagos Fashion Week and I knew ot was only for a lookbook what can I do
I am afraid there is not much that you can do but get copies or screenshots of the adverts and send them an invoice with the proof attached. If they pay, great. If they don’t and you can afford to go the legal route it will cost a fortune and big companies can usually afford to drag thing out until you are broke. Obviously you could embark on a smear campaign on social media but that doesn’t always end well. You will notice that I do not post many of my client’s photos and this is one of the reasons.
Hi Steven my picture was taken the other night at a garage station where I assisted a friend and his sister that ran out of fuel and was stuck along the road. They called family for helped but no one answered so they called me. I took them 5 liters of fuel and we drove to the nearest garage. There I assisted them with another R100 of fuel. The family members arrived and the guy to a picture of us. He wants to show the friend wife that we are having an affair. They have big family issues that has nothing to do with me
Now I’m in the middle of this mess
Can this guy to this and also he was swaering to me over the phone and told me that he will hit me so hard I’ll be praying I’m dead which I see as a threat
Hi Patricia. This goes far outside of the laws that govern photography. From a photography point of view anyone has the right to take photos of you if they are in a public place as long as they don’t use the photo for commercial purposes. As for the rest, that is something you really should take up with the police.
Thank you! You helped me breathe a sigh of relief. Been researching this too, however your article really summed it up well.
I am a photographer who did a shoot for someone…he then subsequently used my work on his own internet page, claimed it was his own and is using it to advertize his business. I can prove it is my work and have asked him to remove it, but now he is making out like I have no copyrights to my images that he passed off as his own…rather unethical, since, as your article shows, copyright is automatic. He had the nerve to post it as “images by …” Blatant lie!
Thank you for helping me. Been losing sleep since he is slandering my name because of embarrassment on his part being caught out, but is still asserting I am in the wrong.
Hi Steven
I recently commisioned to shoot images for a client to be used in their publication. However I have not sent them all the images. What rights do I have over the images not sent to client as I recently posted an image (which has not been included in the batch of images sent to them) on social media and they said that the image should include their logo as it belongs to them.
Hi there,
I work with indigenous people who are photographed by various peoples. I see that if photographers want to use the photos commercially that they should have the written consent of the person in the image, If the person in the image has been paid by the photographer for the pose….do they then forgo the right to object if the image is then sold? Or can they still object of a signed release isn’t in place?
I realize that you are not a lawyer but any guidance would be appreciated….
Thanks Julie.
Hi Steven
I have a couple of questions about the photography of accidents and the patients involved. Would it be possible to email you? I think this thing should provide you my email address.
Thanks for the time.
Jacobus
Hi Steven
I am in the Early Childhood Development sector and as ECD centres we tend to take quite alot of photos of the children, especially in the classrooms and on trips as parents do ask us to take pictures of their children. We automatically post their photos on our websites and also watts app updates.
Do we need to have parents sign an Indemnity Form giving permission to take and post those pictures?
Karrimah
Hi Karrimah. Yes you definitely need signed parent or guardian approval.
Is it legal to take a photograph of a person who has been arrested for shop lifting?
If they are on public property and you don’t use the photo for commercial purposes, I believe that is what is called ‘fair game’.