The Law and Photography of people

After an exhaustive debate on social media today I decided to write an article to clear up the issue of  what you may or may not photograph. There are many opinions out there, but the law is not that ambiguous. If there is a law prohibiting you to do something then you may not do it. If there is no law specifically prohibiting you to do something then you may do it. Laws typically don’t dictate what you can do, but dictate what you cannot do.

In South Africa photographing people in public is legal (1). Reproducing and selling photographs of people is legal for editorial and limited fair use commercial purposes. There exists no case law to define what the limits on commercial use are. Civil law requires the consent of any identifiable persons for advertorial and promotional purposes. Property, including animals, do not enjoy any special consideration.

During the media coverage of the Nkandla controversy it emerged that there exists a law, the National Key Points Act, 1980, prohibiting the photographing of any “national key points.” National key points are buildings or structures that serve a strategic or military purpose. Though it wasn’t revealed what these are as part of state secrecy it was claimed that the presidential residence is one of them and should thus not be shown in media. Subsequent court action resulted in it being ruled that a list of all key points be made public. 

There are two very important distinctions that you need to keep in mind. 

  1. Photographing for non commercial (2) purposes. i.e. where the photograph is not used to generate revenue or advertise something that is a commercial venture. If you are paid to take a photograph but the photograph will be used by a non-profit organisation then the photograph is for non-commercial purposes. Just because you are paid to take a photograph does not make the photo commercial.
  2. Photographing for commercial purposes. i.e. where the photograph is sold online or is used in an advertising campaign for a commercial venture. 

If you are photographing someone who can been seen from public property or from your own private property and you are going to use the photograph for non-commercial purposes, editorial or limited fair use commercial purposes, then you are allowed to photograph that person without their consent.

If you are going to be using the photograph for an advertising billboard and the person is recognizable then you must have the consent of the person you are photographing. This consent is typically in the form of a model release form (3). A model release should ideally be in writing because verbal agreements can be disputed in a court of law.

If you are doing a shoot for a client on the property of the client, then the copyright of the photo’s will vest with the client and the client will need to get the consent from the people in the photographs, if the shoot is going to be used for commercial purposes. 

The above applies to adults and children.

Some frequently asked questions:

  1. I am being paid to do a shoot at a venue. The venue is my client. The photo’s will be used on a outdoor billboard. The people will be recognizable in the photo. Do I need their consent?

    Yes.

  2. I am walking down the street and take a few photos of children playing in a park. May I do that without asking permission?

    Yes, but they may not understand the law and necklace you in the street. Better to get permission first.

  3. I am standing in the street and there is a person on their balcony. May I photograph that person without their permission?

    Yes.

  4. I am taking a photo of someone with their back turned to me in a public area. May I take the picture and sell it on a stock image website?

    Yes.

  5. I am in a shopping center. May I take pictures of the people walking around?

    Find out if the shopping center specifically prohibits you from doing it. If they don’t, then you may. 

Obviously the above answers are subject to the commercial vs. non-commercial points I made above.

References

  1. Burchell, Jonathan (2009). “The Legal Protection of Privacy in South Africa: A Transplantable Hybrid” (PDF). Electronic Journal of Comparative Law.
  2.  Defining Noncommercial report published”, Creative Commons.
  3. http://asmp.org/tutorials/frequently-asked-questions-about-privacy-and-libel.html.

Marthinus Strydom

Marthinus is a venture capitalist and private equity investor. He is the Chairman and Chief Executive Officer of the MJS Capital Group.

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