The Law and Photography of people

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.

The Photographer Blues

PG5N6206-01_small
All photographers experience what I call the  “Photographer Blues” every now and again. It’s that feeling that our photos  aren’t good enough. One component is what is called “Photographer Envy”. That’s when you look at the work of other photographers and feel that your work is inferior. It’s completely natural to look at other photographers and compare your work to theirs. You shouldn’t however become despondent but rather become motivated. Remember, there will always be someone that’s better than you. Try and be the best that you can be. Don’t try and be someone else.
This is not a tutorial on how to become a good photographer, but a few tips to help you improve.

Take more time

I know many photographers who just aim and shoot. You don’t get the best shots by being in a hurry or not thinking it through. Unlike other advice, I would say shoot LESS not MORE. Be more selective. Take more time. Don’t hurry. I know some photographers that shoot 500 frames with the hope that a few of them will be good. Well that is like shooting a shotgun and hoping you hit something. A good photographer will rather walk away from a mediocre opportunity than trying to squeeze something out of it. If it’s the right opportunity you will know it.
Good opportunities are few and far between. Stop trying to think that every shot has to be an award-winning shot. It doesn’t work that way.

Plan your shots properly

You can’t just aim and shoot and think you’re going to get a great shot. It just doesn’t work that way. Getting a good shot is not “luck”. If the light is not right, don’t shoot. Come back at another time. Plan you angles and do a few test shots first. Look at the result and if it’s not right then do it again.

Shoot multiple exposures

Shoot the same shot with multiple exposures. Even the best photographer don’t get it right all the time. When you get back to the PC you can look at all the exposures and choose the right one or combine them when you edit. This way you won’t be disappointed that you got the exposure wrong. Remember, it’s always better to get the best possible exposure with the shot than trying to fix it afterwards.

Don’t shoot RAW

I find shooting RAW a waste of time. The gain in quality and editing capability is so small that it just doesn’t justify the editing time. Streamline your workflow to give you more time to do a professional editing job.

Almost ALL unedited shots look crap

A camera just doesn’t capture what you see effectively. If you look at the unedited shots of professional photographers you will be shocked how similar they look to yours! You need to see the potential in a shot, but that potential is only realized in the edit.

It’s all in the Edit

Ye it’s true. It’s all about the edit. I would say that 70% of the final product is in the editing. Don’t skimp on the time to edit. Don’t skimp on software and learn the tools of the trade. I spend 1 minute taking the shot and 2 hours editing. The camera today is actually a very small part of the end product.
You need Photoshop. Don’t even think about it. There is nothing that beats Photoshop, ok? Got it?
You need lots of Photoshop Actions. These are plugins that automate post processing. Many are free, but the really good ones cost money. Invest in a few really good Actions. It makes everything so much easier and faster.

Learn, learn, learn

We all know about aperture, shutter speed, ISO etc. That’s the easy stuff. You need to learn about cross processing, levels, HDR and all the other cool stuff you can do with your images during the edit.

Ask People

Don’t be afraid to ask people around you if they think your photos are cool. You will soon judge their reactions. If they flip out then it’s good. If they smile nicely and tell you it’s very nice, then it’s crap. Go back to the drawing board and do it again.

Save you PSD files

Always keep the layered PSD files safe. I think I have gone back to my old photos a thousand times to re do some of them. Especially if you get some new actions or learn a new trick. Then you can take that old, mediocre photo and turn it into something special.

Benchmark

Submit your photos to something like Pixoto. The community votes for the best photos and it gives a quick and fairly objective indication if your photo is special or not. There are many flaws with the system but I only use it as a fairly crude bench marking tool to identify those images that are truly special and have potential.

Develop a style

You need your own style. That’s the most difficult part. If you’re just like everyone else then your photos won’t stand out. I can’t help you with that unfortunately. It’s something you will discover after many, many years of practice. But if you keep going, then you will get there and one day, people will start to recognize your photos. That’s when you have arrived. Until then, keep trying!