With recent changes in copyright laws and internationalization of photo distribution, the knowledge of privacy and usage rights has become one of the most essential skills for any photojournalist or art student in today’s digital world.

Obtaining the right to step onto a location in order to capture your perfect photograph is crucial to claiming your ownership and publication rights to your images. This is particularly important if you are planning on displaying the photos in public, selling them, or submitting the images to a publication.

Your Rights to Shoot as a Commercial Photographer

The first fundamental restriction applies to personal privacy. Photography privacy laws vary across international lines. If you are planning to shoot abroad, it’s always a sound practice to invest time to thoroughly study the laws of any country you are going to shoot in. You might want to consider writing down what you’ve learned on a card, so you have a reference when you’re “in the field”. In the United States, the following basic rules apply:

1. Public Property and Fair Use - The term "fair use" varies from country to country, (for example, it’s referred to as "fair dealing" in Canada). In the case of certain subjects, it is assumed common people will take pictures of them; landmarks, parks, or other common locations apply.

   In general, you have the right to photograph properties in a public place, or visible from a public place. However, this doesn’t grant you the full rights to use your photos. Refer to "Your Right to Use" section for more details.

2. Trespassing – Stepping onto private property to take pictures constitutes Trespassing, and is often categorized as civil trespass. Civil trespass requires the landowner initiate a private enforcement action in court to collect any damages for which the trespasser may be responsible for.

   As a photographer or photojournalist, it’s often tempting to obtain your best view point for your capture. Before you take your next step, understand the following:

   • The trespasser must knowingly go onto the property without permission. Knowledge may be classified when the property is fenced, especially when a No Trespassing sign is in sight.

   • A trespasser without the intent of trespassing would probably not be prosecuted. Examples include: the land and access entry were open, and the trespasser left the property immediately upon the owner’s request.

3. Religions and Political Pictures – The U.S government and its legal system does not classify religious programs as “educational” when it comes to presenting images of people associated with religious concepts and landmarks.While the United States allows freedom of press and religion, consider whether your picture is used for a religious or political publication, whose beliefs which you don’t endorse.

   While most religious and political functions take place in public venues, you must proceed with caution upon approaching such locations, especially when your photograph may capture images of people. Since your photographic subject may not subscribe to the religion or politics associated with the photo, an official Release would be required.

   
   

4. Cultural, Environmental and National Security Considerations – Your right to photograph people may be governed by various cultural restrictions. For example, you may not photograph women in a Islamic nation.

   With increasing rigid laws on anti-terrorism, national security and enviromental concerns, various countries constantly update photography restrictions on military, transportation and safety related targets. Even some seemingly public locations may be regulated. For example, Australia's Environmental Protection and Biodiversity Convention Act 1999 (EPBC Act) states that "a person must not use a captured image of a Commonwealth reserve to derive commercial gain". As a photojournalist, you should be aware of anything unexpected while traveling.

Your Rights to Photo Ownership and Usage

1. You May Own It, But You May Not Use It – Owning the negative or photo does not automatically grant you the rights to use, publish, or profit from it. Example, you may take a photograph of a national monument, but you may not use it in a calendar for profit. Same rules apply for taking pictures of people. In these cases, any commercial use would require some form of Model or Property Release.

2. If It’s Not Copyrighted, It’s Still Copyrighted – In the past; all materials must be officially copyrighted before the owner could claim its exclusive rights. However, under the International Berne Convention, almost every privately created artistic work after April 1st, 1989 is automatically copyrighted and protected.

   In general, you should never take or copy pictures from other sources; all artworks are protected by default on an international scale. However, if you reside in the United States, you should serious consider copyright your own intellectual property. Reason? When the United States joined the Berne Convention in 1998, it continued to make statutory damages only applicable for registered works. For more information, please refer to our article: Intellectual Property Copyright and Registration.

3. It’s Still a Violation Even If You Don’t Profit From It – Commercial use for the purpose of trade and profit is not the only criteria in determining false use. Even if you don’t charge for your images, your distribution may damage the value of the original photo.

4. Distinguish Between Commercial and Editorial Use – In most countries you may publish any photography (not obscene) for newsworthy, editorial or journalistic purposes. For such occasions, you as a photographer are protected by freedom of press, or “fair use”.

   To elaborate on “fair user” further, the "fair use" exemption to (U.S.) copyright law was created to allow things such as commentary, parody, news reporting, research and education about copyrighted works without the permission of the author. However, such practice should never harm the commercial value of the work.

   When your photography subjects are people, you should take their “rights of publicity” into consideration. Editorial usage however is not classified as personal or commercial beneficial usage.

5. Photo Usage on the Web – Private individual may post pictures on the web without a formal model release. However such photos may not be construed as any form of commercial advertisement. Certain model releases also have restrictions on permitted distribution channel and media. It’s always best practice to get your self covered in writing.

Final Thoughts

The true meaning of photography rights and copyright ownership is often subjected to interpretation. They vary from geographical location, and your project scenario. Knowing your rights of shooting and ownership will always serve as a solid foundation for your success as a commercial photographer. Although procuring some form of release is often recommended; it’s not always practical. You should always weigh the risk and reward for your decisions.

Related Article:

• Protect My Photos: Intellectual Property Copyright and Registration

 Back to Top