In South Africa, there is no specific legislation governing the rights of photographers and photography subjects, but rather a mix of laws and principles which govern rights of personality, commercial rights and copyright.
Personality Rights: These pertain largely to the subject of the photograph.
Constitutionally, two rights are at play:
Privacy: Section 14: Everyone has the right to privacy, which includes the right not to have-
- (a) their person or home searched;
- (b) their property searched;
- (c) their possessions seized; or
- (d) the privacy of their communications infringed.
Freedom of expression: 16: (1) Everyone has the right to freedom of expression, which includes-
- (a) freedom of the press and other media;
- (b) freedom to receive or impart information or ideas;
- (c) freedom of artistic creativity; and
- (d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to-
- (a) propaganda for war;
- (b) incitement of imminent violence; or
- (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
I truly hope nobody reading this intends to create war propaganda, incite violence or advocate hatred, that said it is important to see the balance between the two conflicting rights. As justice O’Regan stated in Khumalo v Holomisa:
‘The right to privacy, entrenched in section 14 of the Constitution, recognises that human beings have the right to a sphere of intimacy and autonomy that should be protected from invasion. This right serves to foster human dignity. No sharp lines can be drawn between reputation, dignitas and privacy in giving effect to the value of human dignity in our Constitution’
Freedom of expression does not enjoy superior status in our law, this the Constitutional Court has made clear. In considering the commercial side of phootography, we need to take account of another constitutional right:
Section 22: Freedom of trade, occupation and profession:
Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law, such as professional photography.
It is the balancing of these different rights which plays itself out in the profession of photography. Whether your niche is personal photography, promotional work, stock photographs, pictures of nature or journalism.
We will look at the various arenas where this plays out, the theoretical basis and practical advice which can be given in these areas.
In South Africa, any person may photograph any other person, without their permission, in public spaces. These people may or may not be the sole focus of your photograph. The emphasis here is on the word public.
If you’re planning on:
- selling the actual photograph to a stock photo agency, or using it to create an advertising campaign, then you will need to get signed permission from the subject.
- This is even if they were photographed in a public space, and even if they are famous.
- Any commercial exploitation of a person’s identifiable features without compensation or their consent is wrongful. They own their image.
- If the subject asserts their right to privacy, it is better for you to respect that, or at least attempt to obtain their consent. The balancing of their constitutional right to privacy against your right to pursue your profession may not work out in your favour.
Public Places you may not photograph: Points of National Interest:
These are points of military interest or activity. Think airports, bases, bridges, borders, consulates, embassies, harbours or transport hubs. Taking a photograph of any of these is illegal and will likely end you in hot water in terms of the National Key Points Act of 1980.
Lastly, in Public:
- You may not use any image in a way that would misrepresent the subject.
- You may not publish a photograph of a person in any context that states or implies anything untrue about the subject. This is considered an act of libel, and the subject could take legal action.
- Good old Vernon here managed to capitalise on his fame and his image at the time it was a fad, but many of the memes created are libelous and harming to his reputation as they misrepresented his character or accomplishments. See the full story here.
Photography in Private Places:
People who move onto private property must abide by the rules of the owner or person in charge of the property. Many of the places where people gather in South Africa are privately owned. You might find ‘No Photography’ signs all over the entrances. In this case, they have the right to prevent you from taking any photos and may ask you to leave the premises.
As a general guide, a private place is:
- Any venue that charges you an entrance fee, they usually sell tickets with terms and conditions attached.
- Auditoriums, Campuses, Hotels, Malls, Museums, Night Clubs, Private Parks, Theaters or Stadiums;
- Somewhere with ‘no photography’ or ‘right of admission reserved’ at the entrance.
- The purpose here obviously is to prevent images being published of something that other people had to pay to see. There may also be Trademark issues and laws involved, particularly at sporting events.
Photographers being threatened in private places: Points to remember:
- Nobody may confiscate your equipment or destroy images or detain you,, they may ask you to leave.
- If you do not leave when asked, though, they may lay charges against you in accordance with the Trespass Act, which provides that unless you have lawful reason, it is a criminal offence to enter or be upon any land, without the permission of the lawful occupier, owner or person in charge of the land.
- A smile and an explanation will diffuse most situations. Showing the subject the image and offering to email it to them goes a long way. You need to be smart out there!
- Please carry out your shoots being mindful not to infringe on other’s right to privacy & to accommodate trespass laws.
Phrases to remember in public or when you have permission in private places:
- I have broken no law by making a photograph of you, I do not have to explain to you what I am doing or why I am doing it.
- If you attempt to physically restrain me from doing so by touching my person, or threaten to, you are breaking the law. If you do not wish to be photographed the only legal way you can prevent it is to move away from the scene.
- I do not have to show you the photograph I have made. The photograph I have made is legally my property.
- I am not obliged to identify myself to you.
- Although I don’t do it, I am fully within my rights to continue making photographs of you while you are in conversation with me.
Children in Photographs: General Rule: Avoid!
The Children’s Act places the best interests of the child as paramount. Especially when it comes to Orphans & Vulnerable Children, do not make them identifiable. You have no method of knowing who might be looking for these children or why they have been homed in a place of safety. Parents/Guardians can give consent but it must be asked or contracted.
These definitions will help in understanding rights under the Copyright Act:
- An ”artistic work”, means, irrespective of the artistic quality thereof (so, even if its a junk photo)- paintings, sculptures, drawings, engravings and photographs.
- The “author” in relation to-a literary, musical or artistic work, means the person who first makes or creates the work;
- The author of a “photograph”, means the person who is responsible for the composition of the photograph;
- A “photograph” means any product of photography or of any process analogous to photography, but does not include any part of a cinematograph film;
- An “Adaptation” of an artistic work, includes a transformation of the work in such a manner that the original or substantial features thereof remain recognizable.
Vesting of Copyright and how long copyright lasts:
In order to obtain copyright under the Act, the author must be a qualified person, meaning: in the case of an individual, a person who is a South African citizen or is domiciled or resident in the Republic, or in the case of a juristic person, a body incorporated under the laws of the Republic.
Copyright lasts for fifty years from the end of the year in which the work— is made available to the public with the consent of the owner of the copyright; or – is first published, whichever term is the longer, or failing such an event – within fifty years of the making of the work, or fifty years from the end of the year in which the work is made;
Copyright in an artistic work (the photograph) vests the exclusive right to do or to authorize the doing of any of the following acts in the Republic:
- Reproducing the work in any manner or form;
- publishing the work if it was hitherto unpublished;
- including the work in a cinematograph film or a television broadcast;
- causing a television or other programme, which includes the work, to be transmitted in a diffusion service, or
- making an adaptation of the work.
Penalties for infringing a copyright (It’s a criminal offence) may include fines no greater than R5000 or 3 years imprisonment for first offenders, this can be increased for repeat offenders to R10 000 or 5 years imprisonment.
Important to know in respect of Copyright:
- See the Copyright as movable property, something which can be sold, licensed or even bequeathed in terms of a Last Testament & Will.
- Authors can always assert moral rights, to claim authorship.
- Contracts can affect these copyrights in a number of ways.
- Exclusive Licensing must be in writing in order to be effective.
- Non-Exclusive Licenses may be verbal or in writing.
- Putting a watermark or including photographer’s name is important because in any proceedings, there is a presumption, that the author of the work included their name on the artistic work when it was published.
- Crediting is important: If publishing pictures of a building, painting or sculpture, you must credit the author unless the work is older than 50 years;
- These rules mostly apply to social media too.
Licensing & Commercial Use:
- In Sporting or Celebrity Images, there is often a complex ownership structure of rights for commercial use.
- Contracts are important. In South Africa, a person who commissions a photograph, owns the copyright. That is the default position.
- If you as a freelancer want to use images commissioned in your portfolio that needs to be contracted with your client, or a higher price needs to be payable for the client to own the copyright exclusively.
- Read the Terms & Conditions when submitting images to competitions & stock photograph sales.
Summary: Understand when on assignment or shooting a project:
- WHERE you are shooting;
- WHAT you are shooting;
- WHO you are shooting for;
- WHO OWNS the rights to use the images;