~ article by John Fox (Original post date 2011-03-17 | Re-posted on 2020-02-02)
The Law and Photography in South Africa
There are very few laws in South Africa that pertain directly to photography. Most laws have to be interpreted to see how they impact on photography. There are three fields that a photographer is most likely to be confronted with, these are copyright, privacy and trespass laws. Few of our laws mention photography specifically but interpretation and application of common sense help us interpret these to find what applies to us.
The only restriction placed directly and specifically on what may not be photographed by government is subject matter classed to be matters of national security, usually meaning military installations or infrastructure which can include police stations, airports, bridges, consulates, border crossings and transportation. This is covered by the “The National Key Points Act, 1980” (Act No. 102 of 1980). This is the only time the act of taking a photo can be deemed as illegal. Or more specifically when the act of taking a photograph “hinders, obstructs or thwarts any owner in taking any steps required or ordered in terms of this Act in relation to the efficient security of any National Key Point”.
The act is an apartheid era law which was used to protect sites of national strategic importance against sabotage. In 2010 the ANC government declared President Jacob Zuma’s Nkandla homestead a National Key Point. Thus, preventing anyone from taking or publishing photographs of the homestead amid the controversy over public expenditure on upgrades to the property.
Firstly we will discuss copyright law. Copyright only applies to physically manifested work; this can be in the form of a photograph or a digital file. It does not apply to a thought or idea or concept for an image. Whoever ‘reduced such ideas into material form’ will then be the person holding the rights to that work regardless of whether or not it was their concept. The person who holds the rights to an image is therefore its creator, and does not need to be the person responsible for pressing the shutter release on the camera specifically, but rather the person responsible for the artistic input, which includes styling, lighting, sets and composition.
Where South African law differs from international law is in the line “commissioned photographs are owned by the commissioner (client)” This means freelance photographers have no rights to their work.This is a contentious issue that may be covered in further articles and forums. But fortunately this issue can be circumvented by mutual agreement even when it takes the form of a verbal agreement. The act allows for negotiation of these default terms, and consequently any agreement negotiated comes under contract law which then overrides the Copyright Law.
Copyright is automatic; you do not need to take any action to ensure your photograph is protected by the law. Adding the copyright logo to an image only serves as a reminder that the creator reserves rights on the usage of the image. Secondly it allows interested parties to know who to contact if they want to obtain rights for an image. Marking an image with copyright information should include the copyright owners name, the year the image was first made public or was published, the copyright symbol and which rights are reserved. (These can include all rights being reserved or commercial use, uses other than for educational purposes, print and publication more than a single form of media etc.)
Copyright is valid for 50 years from when an image was made public or the first date of publication.
Privacy law allows for photographer to take pictures in any public space. You have the right to take photos of anyone or anything if it can be seen from a public area. This includes parks, city streets and sporting events or concerts. This also allows for any private property or buildings to be shot from within the public domain. Any person and member of the public is basically wavering their right to anonymity or privacy by appearing in these areas and are therefore fair subject matter for images. There are bylaws that can result in exceptions to the standard rules but these generally are in place to prevent an area from being used as shooting locations for commercial purposes without prior consent. Member of the public only have rights when they have secluded themselves to a place where privacy is a reasonable assumption. (Changing rooms, restrooms, medical facilities, or inside a private residence)
These laws make it possible for Google to create Google street view. Controversy surrounded the project, especially concerning the height of the camera which enables it to shoot over walls and hedges from its elevated position.
It is generally accepted to use images of people for personal or “fair use” purposes which include news, works of art, satire, politics, informational or educational purposes. Correspondingly any person entering a political career, waivers many of their rights of publicity and privacy as they will be used frequently in editorial, factual or newsworthy purposes without compensation. Any work to be used commercially must have a model release signed even if they are a celebrity or public figure and they were photographed in a public place. An individual has sole rights to their persona being used for commercial promotion. Therefore, unauthorized commercial use of an individual’s name, image, likeness, reputation, or other recognizable aspects of identity would be illegal.
Once we leave public domain and enter private property we are subject to their rights of admission. Most shopping centres for example have “no photography’ signage posted at all their entrances and they have the right to revoke access. Many places seem like public areas but are in fact privately owned like the Cape Town Water Front or Melrose Arch. These centres and their security guards are well within their right to prevent you from shooting within these spaces, and if they wish they are entitled to ask you to leave the premise. They may not however confiscate equipment, destroy images or detain you in any way whatsoever. The only rights they can enforce or charges they can bring upon you, if you do not leave when asked, would fall under trespass law. The act of taking the image is legal the act of trespass is not. This is true for shopping centres, private residence, hotels, businesses, shops and inside a building’s lobby.
Many photographers get upset when security allows many people access to events with personal cameras and cell phone cameras, but intervene when you try bringing in a DSLR camera or they spot a tripod. As soon as they see any kit that is slightly better than your average compact they deny access. Unfortunately any venue that charges you an entrance fee such as a museum or sports ground usually sell tickets with terms and conditions attached. Often this includes “no photography” as a condition of entrance. This can be because they want to control images crossing from the realm of personal use into the area of commercial use. They want to prevent images being published where people have been charged for the privilege of seeing whatever has been paid for. There are also Trademark issues and laws that come into play, especially at sporting events.
You can take a photo of anyone, anywhere as the act of taking a photo is not illegal. There are few exceptions which pertain to government instillations that carry restrictions. The photographer has to carry out his shoot being mindful not to infringe on others right to privacy, accommodate trespass laws and should be cognisant not to infringe on the copyright of other artworks. Bearing in mind the taking of photos and the publishing of photos are two separate issues.
A hypothetical case study, “are you allowed to photograph children?”
The question I get asked most often is “are you allowed to photograph children” or “can you take photos at a school” and many other variations along those lines. Essentially this is a matter which falls under the privacy law umbrella.
I was lucky enough to attend a talk recently by Emma Sadleir who practices social media law and is a co-author of the book “Don’t Film Yourself Having Sex… And Other Legal Advice For The Age of Social Media”. Her presentation raised some interesting perspectives on individuals’ expectations of privacy, and how subjective they can be. I have always maintained you can shoot anyone in a public space, they have effectively forfeited their expectations of privacy by being there. As always, it is not really as simple as all that.
My take away from the session was a realisation of how easily an expectation of privacy can be reinstituted, which I had never considered before. Privacy is so subjective and individual. If a person expresses a wish for privacy, the very act of stating that desire, affords protection. You may not invade someone’s privacy, once they voice a desire it becomes impossible for you not to transgress. I don’t think there is a court of law that will support the photographer once an individual has stated their objections. As a photographer you will have to oblige and cease shooting them as you will have no legal standing. This means that if there is any confrontation arising from the act of photographing a child, the photographer must back down.
In theory, you do not need any special permission to take photographs of children. In practice you do need permission from a parent or legal guardian to use those images for any commercial gain. This is further complicated by the broad and far reaching interpretations of “commercial gain”. If displaying an image improves your standing as a photographer, even this can constitute as “commercial gain”. In fact, it may as well be translated to, if you would like to do anything with those images, you will need signed permission.
Similarly, we can apply these principals to shooting on a school premises. The question that needs to be answered is, “is there a reasonable assumption that there is a certain amount of assumed privacy within the school premises.” I would assume that there is an expectation from the parents that their children’s privacy is secure at the school, especially as it is not a public space. So you would need special permission granted by the parents to have that assumed privacy “invaded”. Leaving names off the images will not help, if the person is identifiable in the image, even if from behind, you have trespassed their right to anonymity. If anyone confronts you on the act of taking pictures, you will need to cease as the law will not favour you as the photographer.
In summary, while the letter of the law allows you to photograph children, you will need to stop immediately when confronted with any objection, no ifs, ands or buts. Pack up, you are done.
www.svw.co.za intellectual property attorneys Smit & Van Wyk
www.photosecrets.com Photo Secrets
Information on South African Copyright Law can be derived from the COPYRIGHT ACT NO. 98 OF 1978, section 21 deals specifically with ownership. Disclaimer: I am not a lawyer and have no legal training. This document is to be used as a guide only and has no legal credence.
“I am not a lawyer and have no legal training. This document is to be used as a guide only and has no legal credence” – John Fox