Should I take the photograph?

Following on from Lee Herbet’s post about “that picture“… the one of young Aylan Kurdi lying dead on a beach, I started thinking about times when it’s maybe not appropriate to make a photograph. I’m not saying the image of Aylan should not have been made or published… I absolutely believe it should have. But… there are times when you should think twice about whether or not to make an image and then whether or not you can or should use the image.

Let’s take a brief look.

When not to take the photograph

Sometimes it’s hard not to make an image. Sometimes something is happening right in front of you that you just have to capture. But the reality is that sometimes it’s more prudent not to make that image.

Pushups in Rundle Mall
A group of boisterous young men having fun doing pushups in Rundle Mall, Adelaide

Here are a few times when you could be better off not taking the photograph –

  • During an illegal transaction, such as a drug deal
  • During tense times between two (or more) people, such as a fight
  • When the building or subject is copyrighted or trade marked
  • In front of clearly recognisable commercial advertising
  • If you think you’ll need a model release

The first two seem pretty self explanatory. You certainly don’t want to get yourself injured or killed!

If you see something like a drug transaction happening in front of you, it’s probably best for all concerned to just keep moving. If you feel morally obliged, you could call the police and let them know about it, but as far as photography is concerned, just forget it and move along.

The same applies for people fighting. People who are engaged in some form of aggression towards each other can suddenly unite and turn that aggression towards you if you start making photographs of them. Best to just let them get on with it and keep moving.

No photograph is worth getting injured or killed for… except perhaps if you’re a war or news photographer getting paid to take risks.

What about copyright?

Aggression and illegal activities are not the only time you should at least think about not taking a photograph. There are many other variables at play too. Things such as copyright or trade mark infringements.

For the most part, when you make an image, you as the photographer automatically own the copyright to that image. There are certainly some circumstances where you don’t own that copyright, but I’m not going to cover those circumstances in this article. Generally speaking copyright is yours the moment you press that shutter. So, doesn’t that mean you can do whatever you want with the image?

The answer to that question is “No”.

DISCLAIMER: I should point out that –

  • I am not a lawyer;
  • I have no legal qualifications;
  • This is not legal advice.

This article is simply my understanding of how copyright, trade marks and the law work. I should also point out that I live in Australia and that laws pertaining to copyright and your rights in general may be different where you live.

With that out of the way, let’s take a quick look at some instances where you may not be able to use the image, even though you made it.

Property Releases

If you make images of the New York City skyline with the Empire State Building and / or Freedom Tower clearly visible and distinguishable you can certainly use them. The problem arrises when you start to use the images commercially. Simply having the photograph and displaying it on your blog or website is not, as far as I am aware, an issue. However, if you used that same skyline image to advertise your restaurant’s “New York Style Strip Steak”, then you most likely would be in breach of the law. Modern buildings in the USA (those built from 1 December 1990 onwards) are automatically protected by copyright law. However, older buildings could have copyright or trade mark registrations made. The Empire State Building is one building that certainly does and the owners make a good income from selling souvenirs and trinkets based on the building’s likeness. I suspect they would protect their rights quite aggressively.

The Eiffel Tower
The Eiffel Tower in Paris

Similarly, the light display on the Eiffel Tower in Paris has been copyrighted, making it illegal for any commercial use of images taken at nighttime and showing the lighting display without appropriate permission.

Big Ben
Elizabeth Tower (Big Ben) from Westminster Bridge

In order to use an image of a clearly recognisable building or structure for commercial purposes, you may need to obtain a signed property release, which will allow you to use the image for very specific purposes. The release would clearly state what the usage rights were and when and for how long the image/s could be used. Any use outside of that release would be in breach of copyright and / or trademark laws.

Model Releases

What about model releases? If someone is in a public place and you make a photograph of them, can’t you just use the image?

Again, the answer is “No”, or more specifically, “Maybe not”.

Paparazzi
Paparazzi trying to photograph Helena Bonham Carter and Carey Mulligan during filming of the movie “Suffragette” at the Houses of Parliament, London

Generally speaking it is true that a person in a public place should have no expectation of privacy. In some cases that can be extended to anyone easily visible from a public place too. That means you can make photographs of them. It doesn’t matter whether the person is famous or completely unknown, you can still make the image, but it’s what you do with that image afterwards that makes the difference.

You cannot use an image for commercial purposes if it has an identifiable person in it, unless you have their permission to do so. That permission is granted by them signing a model release.

So, can you print an image of a stranger you took while out ‘street’ shooting, but didn’t get a model release signed? Yes, you most certainly can. You could even display it in a gallery and offer it for sale. In this circumstance the image would be considered fine art. It only becomes commercial if you’re using it to promote something for financial gain… advertising.

Wrapping it up…

The laws around copyright, trade marks, property releases and model releases can get very complicated. This has just been a brief overview of those laws and of course they vary, sometimes dramatically, from one jurisdiction to another. If in any doubt whatsoever, make sure you seek proper legal advice from someone authorised to give that advice in the location you live. Spending a small amount of money up front could save you a lot of heartache and money in the long run.

If in doubt, seek legal advice from someone qualified to give it!

Challenge:

My challenge to you is to go out into your local community and make an image of something that is specific to your location. It should be easily recognised by others who live in the area, or maybe even more globally if you live in a large city. Look for an “iconic” image… something that has a sense of place, but try to make an image with a unique perspective.

Share your images in the comments!

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