UK Photographers Rights Guide v2

UK Photographers Rights Guide v2

May 14, 2009 · 803 comments

in UK Photographers Rights

It’s been over four years since we published version one of the UK photographers rights guide.  We’re now very happy to be able to publish version 2 of the guide.

This is intended to provide a short UK guide to the main legal restrictions on the right to take photographs and the right to publish photographs that have been taken.

The guide was written by Linda Macpherson LL.B, Dip. L.P., LL.M  is a freelance legal consultant specialising in Media Law and Intellectual Property Law. She is also a part-time law lecturer and has presented seminars on law for photographers.

The guide is a 2 page PDF, it will print out front and back of an A4 page allowing you to make leaflets to hand out. The guide is intended as an overview of the current legal situation in the UK for photographers, it is not a definitive bible of UK law.

Please do not deep link (direct link) to the PDF or rehost the guide on your website.

If you find the guide useful please link to either www.sirimo.co.uk/ukpr or http://www.sirimo.co.uk/2009/05/14/uk-photographers-rights-v2 or leave us a comment. (Comments from the old V1 guide have been kept as there is a lot of great discussion in there).

By downloading this guide you accept the fact that neither Linda Macpherson or myself accept any responsibility at all for any omissions or errors whatsoever. There is a full disclaimer in the guide, this is just a before you download it warning ! Also Neither Linda Macpherson or myself accept any responsibility for any replies given to comments left. If you require full legal advice please consult a lawyer.

FREE Download – UK Photographers Rights v2 (right click and save as)

This guide was created for Acrobat 5 and above. If you have a problem opening the PDF, please update your copy of Acrobat Reader (it’s free to do so).

USA photographers rights guide www.krages.com/phoright.htm
Australian photographers rights http://www.4020.net/unposed/photorights.shtml

Over the next year we hope to gather thousands of self-portraits of photographers-professional and amateur—from around the world, each holding up a white card with the words, ‘Not a crime’ or ‘I am not a terrorist’.

Over the next year we hope to gather thousands of self-portraits of photographers-professional and amateur—from around the world, each holding up a white card with the words, ‘Not a crime’ or ‘I am not a terrorist’. www.not-a-crime.com

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{ 770 comments… read them below or add one }

1 David January 26, 2010 at 1:41 pm

Thank you once again Linda, this page is and will continue to be an excellent resource for photographers. The law can seem overwhelming at times and this discussion has been very helpful indeed.

Kind regards, David.

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2 sandra devaney January 27, 2010 at 12:58 pm

I wonder if you can help – we have recently taken some photographs at a ‘member’s only event’ and then reproduced them in a brochure (and would like to use on the web site) and wonder if there is some kind of disclaimer that we should publish before doing this – we do not want to have to requested the permission of each individual to reproduce.

I would appreciate your opinion.

Thanks
Sandra

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3 Linda Macpherson February 24, 2010 at 1:20 am

Hi Sarah, and sorry to be so late responding to your comment. It’s hard to say what the legal position would be without having a better idea of the content of the photos. Use in a brochure and the web site – are these marketing tools? You should obtain the written permission of individuals before using their images in this way, but this will not necessarily apply if the images show crowd scenes rather than individuals/small groups.

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4 kombizz January 31, 2010 at 6:05 am

Thank you for sharing this useful information.

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5 kombizz January 31, 2010 at 8:16 pm
6 John February 6, 2010 at 5:30 pm

I have taken a photograph of a parking place with two lorries entering.

I have been told that the photograph cannot be used because the lorries have the companies corporate logo and livery.
without my making any comments about this, can I send the photograph via e mail for comments/opinions etc.

The photograph is intended to show goods vehicles entering a lorry park, any goods vehicles!

Thanks

John

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7 Linda Macpherson February 24, 2010 at 1:24 am

Hi John,
Sorry for my delayed response! You say that you have been told that the photo “cannot be used” but not who told you that or what it is to be used for. It might also be relevant whether or not you took the photo on private property and whether it is the owner of that property who told you that you cannot use it. If you can give me some more information, I will try my best to help (and rather more quickly this time!)

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8 John February 24, 2010 at 12:49 pm

Hello Linda,

Thank you for taking the time to reply, it is appreciated no matter the delay.

I had full permission from the land owner, in fact the owners requested me to take any photographs I wished, but the objector would have harressed me no matter where it was.

I can send you the photograph if you would be so kind as to look at it.

It was the company secretary of the company who objected.

To me it was silly and I asked the company secretary to please have their legal department contact me, this was via reply to an e mail that was written to me, but this was ignored, I repeated the request but again it was ignored.

The secretary wrote to the hosting service, to the lorry park, and to me again threatening that all steps would be taken to remove the photo. For peace and quiet I eventually removed the photo but I am so sure that if what I did was wrong then no BBC or TV company would be able to take still or video shots of vehicles driving down a road in case the vehicle had a trade mark on it or company livery paint job.
Because I think its a matter of scale you would need to see the photo. I did not take a photo of the trade mark nor the truck/lorry alone it was just entering the park via the gate.
Kind regards,
John

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9 John February 24, 2010 at 1:16 pm

Sorry about the spelling of harassment in my last reply.

I omitted to say the photographs are used on a website which is none profit and very loss making. NO gain from the photos, it just illustrates the facility in this case, it could have been any vehicle entering the park! Photography is my hobby, I just like it, have done since a small boy. I have no wish to break the law or even tread near doing so, I respect everyone’s space always.
John

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10 dave mcmillan February 17, 2010 at 10:20 pm

my sister gave some photos to my now deceased father she would now like them back, how ever my other sister who now has the photos refuses to let her have them. my question is who is the rightfull owner of said photos

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11 Trevor February 22, 2010 at 6:28 pm

David, just a few thoughts:
Did your sister #1 originally take the photos? If so, doesn’t she have original negatives or images?
If she acquired them from elsewhere, did she become the legal owner?
When you say she “gave” them to your father, do you mean “gave” as in “made a present of” or “gave” as in “lent”.
If she lent them to him, they would presumably still be hers.
If she gave them to him as a present they would become his to dispose of as he wished.
I suspect it’s not clear in what way she “gave” them?
If they were clearly your father’s property (not sister #1’s property), then:
Did sister #2 ‘acquire’ them before or after your father’s death?
Did your father give or leave them to sister #2, or did she just take them.
If she acquired them after his death, I suspect it was up to the executor(s) to decide what to do with them (in the absence of any specific instructions in the Will). Were either or both sisters (or you) executors?

These are just a few issues that occur to me which may have a bearing on “who is the rightfull owner of said photos”. No clear answer, obviously.

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12 Linda Macpherson February 24, 2010 at 1:13 am

Trevor makes some valid points.
Ownership of the prints is not necessarily connected with ownership of the copyright, of course, so I’m assuming that your sister does not have the original files or negatives to make further prints – if she does this would be the simplest way to avoid family conflict.

It all really depends on what you mean by “gave” some photos to your father. If they were only lent to him, then, as Trevor says, they still belong to her. If she actually gave them to him, as in a gift, then he was free to dispose of them as he wished, either when he was still living, or in his will, (or under the laws of intestacy if he didn’t make a will, though these would not deal with individual items of property).

If your father was given the photos as a gift by your sister and he made a specific bequest of the photos to your other sister, then the ownership will lie with your other sister. But personal effects of no monetary value often cause difficulties in the administration of estates, since they are frequently left out of a will. The executor can then make a decision about what to do with them, including giving them to any beneficiary who expresses an interest in them.

It is impossible to say where ownership lies without knowing more, sorry!

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13 Trevor February 22, 2010 at 4:42 pm

Linda
I hope you’ll excuse me asking a copyright question that is slightly different from most of the discussion on this site.

In an earlier response (7 Dec 2009) you commented:

“For photographs taken before 1 June 1957, copyright lasted for 50 years from the date the picture was taken, and some such photographs will be out of copyright now. For photographs taken after 1 June 1957 and before 31 July 1989, the 1956 Copyright Act provided that copyright in PUBLISHED photographs would expire 50 years after the date of publication.”

A particular website (happy to identify it privately) sells copies of old photographic postcards. Many of those are dated prior to 1957 (back even as far as the 1890s), and others are dated c.1960 or earlier and were presumably published around the time they were taken, i.e. at least 50y ago (OK, I know that’s an assumption!).

The footer on their website pages states:
“All photographs copyright XYZ Ltd 1999-2010 unless otherwise stated.”
and their T&Cs make a similar claim:
“All photographs … featured on the Website are the exclusive copyright property of XYZ Limited unless otherwise explicitly stated.”
“You may not copy, reproduce, … download, … or otherwise use any XYZ content in any way unless explicitly stated within these terms and conditions.”

Are they making false claims?
Is there any copyright in the digital images even if the copyright in the original photographs has long expired?
(I’m expressly asking about copyright in the photographic images rather than any copyright relating specifically to the website, etc..)

If appropriate in the light of your response, could any of that be overridden by their following condition?
“Your use of the Website is subject to the following terms and conditions and use by you for any purpose whatsoever of the Website shall constitute your acceptance of these terms and conditions.”

Also, some of the photographic images have their company name & logo across a corner of the images. Does this affect the copyright in the images? They claim that certain “names and logos are copyright registered trade marks” (sic), but without specifying which logos nor where any TMs are registered (and they appear not to understand, or are intentionally confusing, the distinction between copyright & TM registration!).

I would be interested in your comments. Many thanks in advance.

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14 Linda Macpherson February 24, 2010 at 1:44 am

Hi Trevor,

If you could email me with the name of the website I would be happy to take a look. It is possible that some of these images are still in copyright, though this would mean the owner of the website is the owner of the copyright or has a licence to use the images.
Putting original photographs into digital form does not create a new copyright, since copyright subsists only in original works. UK copyright law does not have a high standard of originality, but scanning a picture does not meet it.

The condition “Your use of the Website is subject to the following terms and conditions and use by you for any purpose whatsoever of the Website shall constitute your acceptance of these terms and conditions” might mean that you became liable to be sued for breach of the condition if you downloaded and used the images, but it would not be copyright infringement, assuming the images are out of copyright.

The use of the logo would be unlikely to be sufficient to create a new work in which copyright would subsist in the whole image, but copyright may subsist in the logo. However, the company is clearly confused about intellectual proeprty rights if they use the phrase “copyright registered trademarks”!

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15 Alessandra Rigillo February 23, 2010 at 8:56 pm

I hope you can help me. I just finished to work on my website and the girl, we both work in a Make Over Photography Studio as photographer, that posed for me topless, changed her mind. Now I have her step-father and apparently his solicitor after me. Can they really do something to me? Do I need a “Model Release Form”? Or only if I sale or make money out the pictures? My website is to show my new passion, Jewellery Making and not photography. Please help me!!!!

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16 Linda Macpherson February 24, 2010 at 1:52 am

Alessandra, can I just clarify what you are asking. You took photographs of a topless model for your website? (I’m assuming she is over the age of 18?) The model knew what the images were to be used for and consented to this but has now changed her mind? Is that right?

Technically, so long as she gave her consent and knew the intended use of the images when she consented, you don’t legally need the consent to be in writing. But, and it is a big but, if she now denies that she ever consented, you have no way of proving that she did. The point of a signed model release form is to protect the photographer as well as the model.
In the circumstances, your best course of action would be to remove the images of the girl and find another model, making sure you get a signed release this time.

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17 Alessandra Rigillo February 24, 2010 at 9:48 am

Thanks a lot for your reply and sorry for the confusion. Yes! The girl is more the 18 years old and she gave me her approval to use the pictures for my website (even after she saw a first example of the my retouching). Unfortunately if I take away her pictures from my website, there is not much left. Please have a look: http://www.everycloudhasasilverlining.co.uk (not yet on Gooogle search)
plus a lot of the jewellery are already being sold (and those are unique pieces). I understand what you said but, sure if someone come to the photography studio, take her top off and pose for me for a very good number of pictures, is that enough to prove that I had her approval? Don’t I need the Model Release only if I sell the pictures or use them for a brochure or advertising? Is a website a form of advertising or is a portfolio of my work? Thanks a lot for you help.
AR

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18 Linda Macpherson February 28, 2010 at 2:33 am

Hi Alessandra,

They appear to be very tasteful photos, but the fact that the girl took her top off and posed may prove that she consented to the photos being taken, but it would not show that she consented to them being used on a website.

As I said, written consent is often not legally necessary. You could show that there was consent, for example, by having witnesses who heard the person consent. But if it is your word against that of the model, it’s very difficult to prove.

Images of individuals may be regarded as personal data within the scope of the Data Protection Act. Following the Court of Appeal decision in Murray v Big Pictures it is also possible that they may be regarded as “sensitive personal data.”. That means that you have to meet certain conditions in order to use them. There are some exceptions, but although your website might not be “advertising” as such, it is promoting your work, and could not be described as publication purely for artistic purposes.

I can see from your site that the images are integral to it. If it is not possible to reshoot the pieces using another model, might it be possible to discuss this matter sensibly with the model and try to obtain some resolution? It’s hard to specifically comment without knowing the full details.

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19 Alessandra Rigillo March 2, 2010 at 11:33 am

Thanks a lot for your help! I decided to retouch even more the images and to remove the model’s face. I hope that is a good compromise so that I can start to relax and move forward. It’s still horrible to realized that all this troubles are from another photographer and colleagues of mine. She also work for Ann Summer and she is the first one to take pictures of naked boys. Yes! There are horrible people around in the World. Luckily there are also GREAT people like you guys that are happy to give us your time, knowledge and patience. Thanks again!

20 admin March 2, 2010 at 1:37 pm

I think this highlights the importance of photographers always getting a contract signed when they shoot for commercial reasons, especially when with a model. People change their minds, get influenced by others, etc.

You should use a contract that specifies what images are to be taken, what they can be used for, and importantly if giving images to a model, what the model can use them for. Anything like nudity should be specified and signed off on before any shoot takes place. If a model won’t sign a contract before the shoot, bin them and move on to one who will.

It’s never as much hassle as the model changing their mind after the shoot!

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21 Luis Rubim February 23, 2010 at 9:30 pm

Hi,

First of all, thank you all for the UK Photographers’ Rights Card and the resources on this site.

I wonder if you could clarify something for me. I have been doing editorial work for a while now and I take to the streets very often and produce some street work. I was discussing my work with another photographer friend and the issue of legality of selling street photography came up. I am clear in what concerns its usage for editorial work but what if I want to sell individual prints or make a street photography book? What are the implications? Would I be in breach of any privacy laws?

Thank you for taking the time to answer.

Luis

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22 Linda Macpherson February 24, 2010 at 2:05 am

Although the laws on breach of the right to privacy are developing in such a way as to place increasing restrictions on photography, MOST street photography will not infringe a person’s right to privacy. At least, not at the present time. Images that show someone in an inherently private situation will infringe the right to privacy even if the person was in a public place.
Images of individuals will usually be regarded as personal data within the Data Protection Act, however there is a exemption where the processing of the personal data is necessary for artistic, journalistic or literary purposes. This may not necessarily give an exemption for selling art prints or publishing in a book, since the exemption only makes you exempt from a provision of the Act if that provision is incompatible with your literary or artistic purpose. The courts might decide that, while it would be incompatible to seek consent before taking the photo, you could seek consent afterwards. The courts have not yet determined these matters.

Street scenes in which a particular individual is incidental to the image as a whole, or crowd scenes, are unlikely to be regarded as personal data.

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23 Dan February 26, 2010 at 12:23 am

Hi

I was just wondering if the recent ruling on Section 44 of the Terrorism Act 2000 by the European Court of Human Rights has any impact on the police’s ability to stop and search me when taking photographs. I have been asked for my details a couple of times when out shooting in local towns such as Aberystwyth and Lampeter and have freely given my information. However, I just watched (literally) the video of the arrest of an amateur photographer for taking photos in a town square at Christmas, and read about the recent Euro Court’s ruling.

Thanks
Dan

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24 Linda Macpherson February 28, 2010 at 3:50 am

Hi Dan,

When you were asked for your details are you sure this was connected with s.44 of the Terrorism Act? Stop and search under s.44 is restricted to areas where an authorisation is in force.
The Government has said that s.44 stop and searches are to continue pending an appeal against the ECHR decision, though the Metropolitan Police, at least, has said that the use of s.44 powers will be scaled back.

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25 the_fonz March 3, 2010 at 3:29 pm

See a short film on this: Freedom to Film, http://www.worldbytes.org/programmes/013/013_003.html.

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26 Robert John Hughes March 6, 2010 at 9:12 pm

Hello Linda,
It appears my comment has dissapeared without receiving an answer, so here goes again briefly this time. Is it against the law to photograph a nude model in a remote and secluded spot in the highlands of Scotland well away from tracks, paths etc where you cannot be over looked. Many photographers here do so in areas where they could be overlooked, so an answer would be much appreciated by many.
John

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27 Linda Macpherson March 14, 2010 at 4:43 am

In theory you might commit an offence by having a nude photo shoot in the Highlands. Though only if you were seen by someone else, when, if they were offended or alarmed by it, you and/or your model could potentially be charged with public indecency or breach of the peace. Presumably, if you can get there then there is a possibility that some hillwalker or other person might stumble across your shoot. The same would apply to nude bathing.
No, photo studios do not need a special licence, since anyone present at a photoshoot with nude adult models has presumably consented to being there, and could not therefore claim to be offended or alarmed. (The same rule applies to, e.g. sex shows and films that contain nudity or what the censors describe as “scenes of a sexual nature”.) Studios wouldn’t normally allow unauthorised people to wander in and out of any shoot, nude or not, so the issue simply doesn’t arise.

Note that the offence is not “being naked”, but of causing offence, distress or alarm to others. And what you describe would not come within the offence of “sexual exposure” as set out in the recent Sexual Offences (Scotland) Act 2009. But it could still be one of the common law offences described above.

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28 admin March 8, 2010 at 2:22 am

Richard Woods’s article “Photography under threat: The shooting party’s over” was published today in The Sunday Times magazine, you can read it on the Times Online website.

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29 admin March 10, 2010 at 5:15 pm
30 naomi March 11, 2010 at 2:25 pm

Look at these films which were carried out by volunteers for the charity worldWrite. They address the issues faced with public filming or photographing with the police and the battle to film freely without suspision.
http://www.worldbytes.org/programmes/013/013_004.html
http://www.worldbytes.org/programmes/013/013_003.html
Let me know your thoughts!

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31 roo March 14, 2010 at 3:14 am

Hi,
What an excellent resource for photographers! And what I found even better was the fact you take the time to reply to your comments with good measured advice!

The reason I’m here is that I am looking for some advise in this area. This may be slightly different to the usual advice as my question is about how to stop an image being used and distributed! It’s a long story and hopefully I’ll list the main points below.

My partner was at a music event last year where she was injured and had to receive medical attention. Whilst being examined/treated in the medical facility a photographer took photos of her and details. Due to her being in severe pain she was not aware of the photos being taken, nor did she give her details.

She only became aware of the existence of these images several months later when seeing them on a very reputable & popular website. This for many reasons has caused her a great deal of distress.

After some research I found the photographs are available via Getty images and although no release for commercial use is cited it appears they are available for ‘editorial’ use. The photo details on Getty also detail her name and the ‘condition’ she was being treated for.

We both feel that this is a major breach of privacy and whilst under going medical treatment in a medical facility a person should not be subjected to intrusion on a very private time by a press photographer.

The event tickets may (and probably do) include a clause that ticket holders give consent for photographs being taken. Though surely there are some boundaries to the acceptability of photographing inside medical facilites of patients without their consent.

In conclusion, I’d like to ask if you have any advice on getting these images removed from the offending sites and getty images as well as requiring the photographer to ‘delete’ these images.

I’d like to end by saying I am very much in favour of freedom of press/photgraphy/speech, but I feel the boundary on privacy has been very much crossed in this case.

I’d like to thank you in advice for reading my question and any advice or guidance you may be able to give.
R.

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32 admin March 15, 2010 at 1:27 am

Have you tried asking the photographer or the website to remove the image? It’s the first step. Just explain politely why you’d like them removed.

It’s very hard to say with the information you’ve given if there’s a ‘breach of privacy’. The location of the event, the tickets conditions of entry, the event organisers ‘agreement’ for press, the uniqueness of your partners name, how recognisable they are in the images, the ‘condition’ itself, where the photographer was stood, if the treatment was visible to the public, etc. would likely all come into play.

For legal advise you’d really need to talk to a lawyer and explain the full details.

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33 roo March 15, 2010 at 1:48 am

Thanks for the very prompt response. Just to answer a couple of the points you raise…

I’m contacting the event holder to find out what permissions were granted to photographers and what permissions were accepted by ticket holders.

The medical facility where the examination took place may not have been as secure as a hospital, but couldn’t be classed as a public area. It may well be argued whether it was a public area, though the picture shows my partner on a treatment/examination couch being examined by a doctor in a makeshift cubicle. One should be able to expect a reasonable amount of privacy in such a place.

Having communicated with a member of the facilities staff they believe that patient confidentially has also been breached on this occasion. Just the photo would be considered as such, but along with the name and injury being stated even more so. I am awaiting speaking to the director of the service in regard to any policy they may have and to find out if any permission for the photographer to be in the area taking pictures was given.

As for Uniqueness of my partners name, well I’d say 100% unique. When googled you have to get to page 10+ to find another with her name, and that is a .com search not a UK one.

I have contacted Getty Images in regard to this along with the online magazine and am awaiting a response. I just hope I don’t get a ‘canned’ auto-response as I was only able to use online contact forms! I have also contacted the photographer requesting cooperation in removing them from agency sites and detailing any usage of these images. I would hope all parties will have a response in the next few days.

Meanwhile, I do accept that professional legal advice is needed and will be sought at the first instance on Monday.

Thanks again for your response :)

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34 Linda Macpherson March 15, 2010 at 2:09 am

I agree with Simon that the first course of action should be to ask the administrator of the website to remove the image.

I’m assuming this was a UK event, as the situation varies from one jurisdiction to another. Otherwise, the key issue, I think, depends on the scope of the entry terms and conditions. Ticket conditions would normally include an agreement to be filmed or photographed, but the scope of this can vary. Glastonbury tickets, for example, have a term stating that the ticket holder consents to being filmed or photographed for public broadcasts and for any CD/DVD as part of the audience, and by CCTV for security purposes. Arguably, being photographed while receiving treatment in …what?…the first aid tent?…would not come within the scope of this. But it would come within the scope of a condition that consented to being photographed or filmed while present at the event.

There could be Data Protection implications here, particularly if your partner’s name is given in conjunction with the images. And also possible breach of confidence, as there is an argument that one has a reasonable expectation of privacy while receiving medical treatment (even if this was in a public place – shades of Campbell v MGN).

But if consent can be implied from agreement to the terms and conditions of the event, then neither the Data Protection Act nor the law relating to breach of confidence (which is the way the courts determine “breach of privacy” in the UK) would have any application.

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35 Linda Macpherson March 15, 2010 at 2:23 am

Incidentally, I feel that the uniqueness of the name is not an issue (sorry Simon), where the name is attached to an image of the person from which they can be recognised.

I should add, since I’ve said it often enough before, that the Data Protection Act has an exemption where the processing of personal data is for journalistic purposes, but this applies only where data controller reasonably believes that publication would be in the public interest and that, in all the circumstances, to comply with the rules of the Act would be incompatible with the journalistic purposes. While publication of the image might fit with these criteria, I cannot see a public interest in the publication of the name, though it’s hard to say without knowing the full details.

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36 John March 15, 2010 at 11:16 am

“Possible good news ?”

Hardly. These politicians don’t lie very often, only when their lips move. Under this government, a country that once was the freest in the world has become a police state. Very recently, a middle-aged man was subjected to brutal treatment by Thames Valley Police in a quiet Oxfordshire town for taking innocuous photographs in a major street. The concept of common sense seems to have disappeared from this country.

I have various ideas for photographs I want to take in Oxford. I wonder whether I should wear formal and expensively clothes – a good-quality jacket and a tie so as to look as much like a ‘respectable’ person as possible – or a shabby jacket with a jumper underneath (or no jacket?), to look like a college lecturer.

John
Photographer since the age of 10, formerly professional photographer and photography lecturer

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37 John March 15, 2010 at 11:19 am

Linda,
Surely patient confidentiality is a provision in English law?
Regards,
John

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38 Linda Macpherson March 16, 2010 at 12:23 am

Doctor-patient confidentiality forms part of the General Medical Council’s guidance for good practice. Failure to follow the guidance can lead to a doctor being removed from the register. There is also a common law duty of confidentiality when information is disclosed to another person in circumstances where it would be reasonable to expect the information to be held in confidence (I mentioned breach of confidence above). The Data Protection Act also applies, since it is concerned with personal data and sensitive personal data, the latter including information about a person’s mental or physical health or condition.

None of these are absolute, in that there are circumstances where there is legal duty to disclose information. And all can be waived by consent (and for certain other reasons).

So yes, it is provided for by law (and by ethical rules) but not by a single neat provision, as such.

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39 Lin March 15, 2010 at 2:17 pm

Linda, thank you so much for sharing your time and expertise, this site has become an invaluable resource for us and has assisted us greatly in answering many of our clients’ queries. I would very much appreciate some advice as regards using our photographs for art-prints and post cards. I have always been under the impression that a photographer can mostly use and sell their work as they wish (eg artistic or editorial expression) only requiring consent if the person or item in the photograph may be used to endorse or advertise a business or service. My question is, are we permitted to print images from both our street/event work and from our commissioned sittings to sell as fine art prints and postcards (often where people or items are the main subject of the image)? Examples might be creative imagery of pets, cars, or baby portraiture. Does the subject of the photograph, or the owner of the pet or object, or the parent of the baby, have the right to influence whether we can sell our work in this way? I have noted that a person may raise a moral objection to their likeness being displayed if the work has been commissioned by them and this is confusing me when it comes to artistic sale of the pictures. Any guidance would be greatly appreciated.

Kind regards,
Lin

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40 Linda Macpherson March 16, 2010 at 1:24 am

Lin, the “moral objection” you refer to comes within copyright legislation. (s.85 of the Copyright, Designs and Patents Act 1988) A person who commissions a photograph or film for private or domestic purposes (this would include, for example, wedding photos and most portrait sittings) has certain privacy rights. These rights are the right not to have the work issued to the public or exhibited or shown in public, or included in a broadcast. The right can be waived. So, yes, although you hold the copyright in images you have taken for commissioned sittings, assuming these were commissioned for private/domestic purposes you would need consent before selling these as fine art prints or postcards. (And it would probably be easier to get that consent in advance, at the time of the sitting, than to try to obtain it afterwards.) This would also include images of pets or objects, such as cars, where the image was commissioned for private purposes.

Non-commissioned images of pets and objects could normally be used for art-prints and postcards, though not for advertising or marketing if they were the identifiable possessions of another person.

Non-commissioned images of people are more problematic. Images of groups of people are not likely to cause difficulty. Images of an identifiable individual might be, since they may be regarded as personal data under the Data Protection Act and such data must be “processed” in accordance with the Act. This does not mean such images can’t be used. There is an exception for data processed for “artistic purposes” though this is subject to conditions. See the Information Commissioner’s Office website for more information: http://www.ico.gov.uk

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41 Lin March 16, 2010 at 11:37 am

Linda, thank you very, very much for your time in helping us all to better understand the many confusing legalities surrounding our work. I am very grateful indeed for the response and I have learned so much from this fantastic site.

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42 Luis Rubim March 18, 2010 at 12:17 pm

Dear Linda,

Once again, thank you for taking your time to answer my question. I was just wondering now, if it is ok to post this answer at the Amateur Photographer forum, since it may be of interest to some of the members of the forum.

Thanks,

Luis Rubim

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43 Zoe Williams March 30, 2010 at 2:59 am

Hi I wondering if you could give me some advice.
I am an amateur photographer and I take photographs of jewellery for my sisters online shop and today by chance we found another online jewellery shop using my images. The items of jewellery in photographs are my sisters own designs which they are now obviously copying.
It seems to be an american site although it says they have an office in the uk.
To add insult to injury in their Terms & Conditions it states as follows:
Artist Copyrights: All digital images contained in this website are under license by Lapis Lazuli World and are available to any person for the express purpose of viewing the website. No image or portion of any image may be reused without the express written consent of Lapis Lazuli World and the individual artist. All physical artworks are owned solely by the individual artists and are subject to United States and international copyright laws. No artwork may be reproduced or replicated in part or in its totality without the express written consent of Lapis Lazuli World and the individual artist.
My sister and I couldn’t believe it and don’t know what we can do about it and Icertainly haven’t given my permission for anyone other than my sister to use my images.
Please help. What should we do? Is there anything we can do? If so is it going to cost lots of money?
Regards
Zoe Willams

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44 Linda Macpherson April 3, 2010 at 12:08 am

Zoe, if you are certain that they are your images, then this is an infringement of your copyright, obviously. If the company has also appropriated your sister’s designs, these too may be protected by copyright.
Technically, you could sue for copyright infringement, but this is a US-based company and this can lead to difficulties with jurisdiction. Generally, a legal action would probably have to be brought in the USA (specifically in Florida). Questions of jurisdiction can be complex, and there may be arguments for founding jurisdiction in the UK, but any judgment would still need to be enforced by the courts in the defendant’s jurisdiction. So it can be complicated and, yes, expensive.

In the first instance, I would advise contacting the company and stating your complaint – inform them that they are using your images without your consent and thereby infringing your copyright. The company has a UK office, though it is not registered here, and the address and telephone number are on the web site. If you have no success with that, you could contact the company’s internet service provider. Neither of these measures will cost you anything except your time, and they would normally be the first steps anyway.

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45 Mia April 3, 2010 at 3:06 am

I was wondering if I could ask for some guidance, a friend took some pictures at a private event she was invited to, without asking me she put the pictures on her website. she is a uk resident, but has moved to Canada and the website is hosted in Canada. She’s refusing to remove the pictures – is there anything I can do, that you know of? Thank you in advance.

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46 Linda Macpherson April 8, 2010 at 1:02 am

Mia, it is impossible to advise on this without knowing more about the nature of the event (was it one where people might have a reasonable expectation of privacy, for example), the nature of the photographs and the manner of their publication (Are they accompanied by other personal information?).
But even if what your friend has done is actionable in the UK, the fact that she is resident in Canada and the site is hosted there can pose all kinds of legal and practical problems. Something may be legally possible, but not practical for most people. There are all kinds of issues of jurisdiction, enforcement and applicable law when activities take place across borders.

You could try contacting the company that hosts the website. Some ISPs will remove material if they feel there is a possibility that it might lead to potential liability for them.

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47 Robert Carter April 5, 2010 at 11:04 am

Hi linda i am just a learner and i love street scenes at all hours morning noon and night i have i think taken some preety good shots some in york of a beutiful young girl crossing the bridge and brushing her hair and as she did she notised me and smiled i got a few shots of her and one in particular is lovely have i the right to have it published. i am a great fan of henri cartier-bresson and do i have the right to take photographs of people in the streets shoppers-tourists-street cleaners-workers-shop assistants-bakers-butchers and so on

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48 Linda Macpherson April 8, 2010 at 1:12 am

Hi Robert,
You have the right to take photographs of people in a public street, but whether you have the right to publish them depends on a number of factors. It has to be said that the era of Cartier-Bresson is long gone and we live in an age where people regard themselves as having much more control over the use of their image. This is supported to some degree by the law, and court decisions of recent years have found some photographs taken in public places to infringe the right to privacy of the subject. So, it really is advisable to get consent, (written consent if possible) before using photographs of people, expecially if the photograph is of an identifiable individual rather than a group of people.

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49 Matthew Burch April 5, 2010 at 8:52 pm

Dear Linda,

I may be stuffed with this one.

In 2007 I worked on a charity calendar in aid of the local hospice. The idea was to produce 12 high level photos of local landmarks, sites, activities etc.

The National Trust gave permission for me to access Frensham Little Pond (a few miles South of Farnham in Surrey) to work on a photo for the calendar. They made no charge for this but I did have to sign an agreement. The agreement states the usage for the resultant photo, that being the calendar.

In the course of the day I created a panorama of the pond. It turned out to be unusable for the calendar due to the dimensions, nevertheless it is quite a nice photo. It is in the Panorama section of my gallery page.

A number of local people over the last couple of years have wanted large canvas prints but when I asked the NT if I could makes sales of the photo they said no. I know land owners can restrict photography. Setting aside the issue of whether the NT should be allowed to so dogmatically restrict sales of photos, given that they were conceived to hold property for the people, is there any way I can approach this which would allow me to sell prints?

I offered to pay the NT a share of the profits but they said no.

I DID sign the agreement. I have no problem with that and if at the end of the day it is just tough then so be it. Afterall, I impose my Terms and Conditions !

The agreement clarifies that the Copyright is mine but I am guessing that I still need their consent to sell prints.

Is my only option to ask them again, they last said no in early 2008.

Regards

Matthew

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50 Linda Macpherson April 8, 2010 at 1:23 am

Hi Matthew,
I’m afraid you probably are “stuffed” as you put it. The NT has imposed restrictions for some time on photography for commercial gain and they have recently become more pro-active in enforcing that. I’m guessing that they gave permission for the original shoot because the images were going to be used for a good cause – hence the agreement setting out the permitted usage. Because you have that signed agreement, you could be sued for breach of contract if you sell prints. The NT are an independent charity and, though their remit is to hold property “for everyone” they are still legally landowners with the right to restrict what people do on their properties.
So, sorry, your only recourse is to ask them again, though perhaps they would be more willing to consent if you negotiated with them over a share of the profits on sales, or payment of a fee.

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51 Matthew Burch April 8, 2010 at 1:24 pm

Dear Linda,

Thank you for your reply, it is much appreciated. I pretty much new you were going to say what you did, I suppose I was hoping you may have have known of a case of a similar nature with a better outcome.

I signed the agreement. It was a job. I don’t really have a beef with the situation except that I think the NT are unreasonable. Apart from anything else, I offered payment, they said no, yet in the next breath they want to raise money.

I will approach it again and ask but I don’t hold out much hope.

Kind Regards

Matthew

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52 Emily Jones April 8, 2010 at 7:22 am

Hi Linda Macpherson,
I am writing an article about street photographer for Capture magazine in Australia and I was wondering if I could email you a few questions about the recent legislation – just for some quotes, although your handout explains it very well.
Cheers, Emily Jones

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53 Linda Macpherson April 13, 2010 at 11:50 pm

Sure, Emily. I will certainly help if I can.

Linda

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54 John April 11, 2010 at 7:37 pm

The NT may be within their legal rights, but they are acting more and more in recent years as feudal landlords. They are GIVEN those properties by individuals, after all, to hold in trust as custodians for the nation as a whole.
I know what I would do if they still refused? write a letter to the local paper, or even try to get a journalist interested. I know several people who are getting more and nore fed up with the NT’s arrogant attitude.
One example recently: at an NT property I visited, you are allowed to photograph outside but not the items on display inside. I took a photo OF THE OUTSIDE scene through a window, from the inside, and was harrangued most snottily by a self-important busybody who was too thick to understand the difference between photographing the items indoords, and photographing the outdoors from indoors. I just turned my back on her and walked away, leaving the silly so-and-so open-mouthed.

Frensham ponds are wonderful. I photographed them many years ago (I used to teach photography at what was then WSCAD in Farnham).

Cheers,

John

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55 Claudio April 13, 2010 at 10:07 am

Linda,
Great job, I will returning to the UK after two years in Atlanta and two in Singapore, and I better get used (again) to the “you will filmed fifty times a day by CCTVs, but damned if you take a picture” approach. Here in Singapore it does not matter where I am, there are always a dozen chapes with big DSLRs (and sometimes Lomos) taking pictures of everything, including the food they have at the restaurant. In the US… well, in Atlanta I was asked why I was taking a picture of a magnificent building in midtown (“Because it’s magnificent, sir!”), and in other occasions I was given wary looks when I took pictures of dams, bridges and anything vaguely remarkable. I was lucky none of the wary bystanders were Jack Bauer-style proactive … but I understand the fear.

Now, a question on law and sports photography: can the subject of a photo taken during a sports event claim that the photographer has no right of taking that picture, on grounds of privacy violation?

Background information: as an amateur sport photographer, in the last few months I have taken plenty of pictures of triathlon, fencing, sailing, football (soccer). These competitions were photographed without having an official assignment, without having to pay a ticket (and therefore without a recorded entry in the event venue), and in public places (with the exception of the fencing competition). For instance, I recently followed a triathlon competitions which took place in a public park (the run), on a public road (the cycling segment) and in the Singapore Strait (the swim). I have contacted several participants offering them free copies (for non-commercial use) of pictures in which they appear. I have so far received replies ranging from the thankful to the enthusiastic, but I wonder if any of my subjects might actually complain feeling that their privacy has been violated.

Based on common sense, I believe somebody’s expectation of privacy should be considerably lowered, when this person dons his/her sports gear and takes part in a sports event on public land. Your comments, please.

A further ramification: what if I take pictures in the above described scenario, and then find somebody – a sports magazine, a sports gear shop – interested in publishing one of my pictures in exchange of money? Would the subject of the image have any right to claim a share of the money I receive?

Thanks

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56 Linda Macpherson April 14, 2010 at 12:13 am

Claudio, expectations of privacy do depend to a great extent on circumstances. We haven’t (yet!) reached the stage where everyone has an absolute right not to be photographed without their consent. And yes, if someone is taking part in a public event in a public place, they would generally not have the right to complain that their privacy had been invaded by them being photographed.

The images could be published in a sports magazine, and the subject would not have the right to claim part of any payment you receive. The sports gear shop may be different, depending on whether the image is simply used for display (as a kind of artistic print) or used in advertising material. There could be potential problems in the use of an image of a person for the purposes of advertising or marketing without their consent. Though the liability would really fall on the end user – the shop in this case. Again, you are effectively licensing the copyright in your image, and the subject could not claim a share of your payment.

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57 Seb April 16, 2010 at 11:47 pm

Hi,
I came accross this website some time ago and I really appreciate the work you are doing here. I hope someone can help me with my questions about photographing architecture in the UK. I’ve been searching the internet, looking for books and articles for a while now but still things are not entirely clear to me.

I have the right to photograph a building from a public space, right? But do I have the right to use it anyway I like because I own the copyright (i.e. on a website, in a calendar or leaflet from which I will be making money) without having a release?

Is publishing it on my website not for sale but only as a part of the portfolio is comercial use, does it require property release?

And finally are the answers for the above questions are the same for ‘ordinary’ building and a well recognized architectural master piece?

I am a bit confued and don’t want to get in trouble because of a photo…

Aslo recently had a situation where I was on a street and a shoping centre was underneath it and next to that street and some security guards came to me and told me that I’m not allowed to take any pictures there (there were no signs). Wasn’t that a public space (anyone can access it at any time even if the shopping centre is closed)?
Cheers,
Seb

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