Photography and the Law

Rights and Restrictions

Michael O'Flanagan

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429887550
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Photographers and publishers of photographs enjoy a wide range of legal rights including freedom of expression and of publication. They have a right to create and publish photographs. They may invoke their intellectual, moral and property rights to protect and enforce their rights in their created and/or published works. These rights are not absolute. This book analyses the various legal restrictions and prohibitions, which may affect these rights.

Photography and the Law investigates the legal limitations faced by professional and amateur photographers and photograph publishers under Irish, UK and EU Law. Through an in-depth discussion of the personal rights of the public, including the right not to be harassed, the book gives a clear analysis of the current legal standpoint on the relationship between privacy and freedom of expression. Additionally, the book looks at the reconciliation of photographers' rights with the state's interest in public security and defence, alongside the enforcement of ethical and moral codes. Comparative legal standing in the European Union is used as a springboard to further analyse Irish and UK statutes and case law, including recent reforms and current proposals for future change. The book ends with pertinent suggestions of the necessary reforms and enactments required to rebalance the relationship between the personal rights of individuals, the state's duties and the protection of photographers' and photograph publishers' rights.

By clearly explaining the theoretical and conceptual reasoning behind the current law, alongside proposed reforms, the book will be a useful tool for any student or academic interested in photography law, privacy and media law, alongside professional and amateur photographers and photograph publishers.

1
Introduction

This book offers an original perspective on the legal rights of still photographers and photograph publishers in Ireland to take and/or publish still photographs and on the legal restrictions and/or prohibitions, which either are or may be imposed on such rights. For comparative purposes, an analysis of the applicable law in the United Kingdom is also offered by the author. Particular attention has been paid to developments in law and policy occurring at EU and Council of Europe levels.

The creation and publication of a still photograph are two separate, but related, activities. A still photograph may be published either by the individual who created the photograph (the photographer) or by a third party, such as a newspaper publisher. The book focuses exclusively on the law relating to still photography and the publication of still photographs. It does not extend to encompass movie photography. Although this book discusses the law as applicable to professional still photographers and still photograph publishers, the same legal rules and principles apply equally to amateur photographers and photograph publishers.

The book investigates the legal rights of photographers and photograph publishers to take and publish photographs. Photographers and photograph publishers enjoy a wide range of legal rights including fundamental rights. They have the right of freedom of expression (particularly artistic and commercial expression) and the freedom of publication. Specifically, they have the right to create and publish photographs. They also have intellectual, moral and property rights including the right to protect their rights in their created and/or published works. These rights are guaranteed through constitutional provisions; statutory law; European Union Law and the Charter of Fundamental Rights; as a consequence of court judgements; and through international treaties and conventions.

The over- arching right of photographers and photograph publishers to freedom of expression and the main vehicle for the implementation in practice of that right by them, namely through copyright law, is examined. The book identifies and examines photographers’ rights under copyright law, how copyright law protects those rights and the remedies available under copyright law to the owners of the copyright in photographs against the infringement of those rights. It investigates whether, how and the extent, if any, to which photographers and publishers’ rights under copyright law are being eroded and whether those rights should be further protected and enforced.

The legal rights of photographers and photograph publishers are not absolute. They may compete with the legal personal rights of others, such as one’s right to privacy, the right to one’s good name, the right to a fair trial and property rights. This book identifies and investigates these competing legal rights and how the courts balance such rights. Legal restrictions and/or prohibitions may be placed upon photographers’ and photograph publishers’ rights, as a consequence of, for example, the protection and enforcement of the legal, personal rights of others, and of the state’s duty to maintain public order; to protect the security and defence of the state; to prevent and/or to investigate crime, and to protect public morals. The book investigates such various restrictions and prohibitions. In addition, ethical codes of behaviour, which may result in restrictions being imposed on photographers’ and photograph publishers’ legal rights, are also explored.

The book investigates the nature and scope of the legal interplay between photographers’ and photograph publishers’ rights, responsibilities and restrictions, the extent of this interplay and how such might be categorised. It also investigates how the legal rights enjoyed by photographers and publishers of photographs in Ireland and the responsibilities and restrictions placed upon them compare to the situation in other selected legal jurisdictions and in particular in the United Kingdom. The author questions how and the extent to which opportunities arising from developments in communication technologies pose challenges and threats to existing legal rights of photographers (including e- privacy – one’s right to privacy online), their clients, the public and the traditional media and how such competing interests currently are and should be regulated and balanced.

A number of recommendations are offered by the author which would strengthen the protection and enforcement of photographers’ and photograph publishers’ existing legal rights – particularly their rights under copyright law. The author also recommends the enactment of statutory provisions concerning some specific personal rights of individuals, including, for example, the right to privacy and the right not to be harassed by photographers and photograph publishers.

Moving on from Chapter 1, Chapter 2 examines the theoretical and conceptual basis of the legal rules, principles and doctrines from and upon which the various types of rights and restrictions applicable to photographers and photograph publishers has been developed. Having considered rights as a concept and the origin and types of rights that exist, it identifies and examines the foundation of the legal right to take and publish photographs. Central to this examination is the right of freedom of expression and particularly the rights of artistic and commercial expression. The chapter goes on to investigate photographers’ and photograph publishers’ rights granted under the Constitution of Ireland, statutory provisions, international conventions and treaties and as recognised by the common law.

Having discussed the over- arching right of photographers and photograph publishers to freedom of expression in Chapter 2, Chapter 3 focuses on the main vehicle for the implementation, in practice, of that right by photographers’ and photograph publishers’, namely through copyright law. It identifies and examines photographers’ and publishers’ rights under copyright law. It also examines how copyright law protects those rights and the remedies available under copyright law to the owners of the copyright in photographs against infringers of their rights under copyright. It investigates the legal exceptions to those rights. The chapter examines whether, how and the extent, if any, to which photographers’ and publishers’ rights under copyright law are either being eroded and whether those rights should be further protected and enforced.

Photographers’ and publishers’ legal rights to take and publish photographs are not absolute rights. Such rights may be legally restricted in order to protect the guaranteed, legal rights of others. Chapter 4 examines the range of legal personal rights, which frequently come into contention with the rights of photographers and photograph publishers, including the individual’s right to privacy, the right not to be harassed, the right to one’s good name, the right to be forgotten and private property rights. The chapter also examines the concept of individuals having a legal right over their personal images and a right of publicity.

In addition to the legal restrictions that may be imposed on the legal rights of photographers as a consequence of the protection and enforcement of the rights of other individuals, restrictions may also be placed on photographers’ and photograph publishers’ rights as a result of the state undertaking its legally required duties. The state has a duty to maintain public order, to protect the security and defence of the state and its citizens; to prevent, investigate and prosecute criminal activity and to protect the administration of justice. Its duties also extend to the protection of public morality. Chapter 5 investigates how and the extent to which these various duties, as placed upon and exercised by the state, may restrict the rights of photographers and photograph publishers. Other restrictions on the activities of photographers may result from a variety of statutory provisions, such as those designed to protect wildlife, or due to the terms of contracts or accreditation schemes. In addition, the rights of photographers and photograph publishers to take and/or publish photographs may also be restricted on ethical grounds. Ethical standards or codes of behaviour as implemented by a range of organisations, such as the Press Council of Ireland, may result in the restriction of photographers’ and photograph publishers’ rights. Chapter 5 examines the various codes of practice, which have a direct relevance to, and impact on, the activities and work practices of photographers and photograph publishers.

In Chapter 6, the author offers his overall conclusions and makes a number of recommendations for legislative changes relating to the legal protection and enforcement of photographers’ and photograph publishers’ rights and also the rights of third- party individuals.

2
The legal rights of photographers and photograph publishers

2.1) Introduction

The creation and publication of still photographs are two distinct, but related activities. Photographers and photograph publishers enjoy a range of legal rights which are derived both directly and indirectly from a number of sources at the global, European, European Union and national levels, international treaties and conventions, the Constitution of Ireland, statutory legislation and the common law. Through their application of constitutional, statutory or common law, the courts have recognised the legal right of individuals to both take and publish photographs. However, these legally recognised rights are not absolute and they may be restricted either by legislative provisions or by the courts when they are balancing the rights of photographers and photograph publishers with the competing rights of others. Underlying the rights of photographers and photograph publishers to take and/or publish photographs is the right of freedom of expression, including its sub- sets – the right of artistic expression and the right of commercial expression.

Chapter 2 examines how the right of freedom of expression and the rights of photographers and photograph publishers have developed in Ireland and how such development has been both influenced and contributed to by Ireland’s participation in international affairs at global, European and European Union levels. Prior to doing so, it is firstly of benefit to briefly consider the origin, types of and justification for rights and how this relates to the rights of photographers and photograph publishers in practice.

2.2) Rights: their origin and types

A right is a power or an authority possessed by one person with a correlating duty placed upon other person(s) to respect that power or authority. Some duties, but not all, have correlating rights. Rights are generally viewed as having two distinct origins, namely those which exist under natural law (natural rights) and those which have been created under positive law (man- made rights). The status of natural law has been recognised by positive law – for example through the Constitution of Ireland, which states: ‘The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of personal goods.’¹ People possess numerous rights across a broad range of issues and rights may be grouped under a number of headings, namely civil; political; social, economic and cultural; personal, human rights and fundamental rights. The importance of the status of fundamental or basis rights is recognised by the Constitution of Ireland, which guarantees a variety of fundamental rights.² Fundamental rights are protected by the courts. As will be shown later in this and the subsequent chapters of the book, a number of these categories of rights could apply to photographers’ rights. For example, the central right of photographers – freedom of expression – can be categorised as both a fundamental right (it is necessary in a democracy), a personal right (it belongs to everyone) and a public/political right (it contributes to public debate). Also, copyright, which is an important safeguard for photographers’ artistic and commercial ventures, can be categorised as both an intellectual property and a private property right; a personal right (the right to artistic expression and the right to a livelihood), an economic right (to be recompensed for one’s artistic creations) and a socio- political or cultural right (to enable the public to enjoy a created artistic work). Together with the property and economic rights under copyright law, photographers also have moral rights in their works.

2.3) Right of freedom of expression

The term “freedom of expression” embraces the right to ask or search for, to receive and/or to communicate to others ideas, opinions or information through any medium of communication without restriction. Speech is one of the many methods of communication and the term ‘freedom of speech’³ is frequently used as a synonym for freedom of expression. Publishing is an enabler of the right of free speech, as are the creation and publication of photographs. If freedom of expression is not permitted within a society, then its members will be prevented from discovering and/or communicating to others information and opinions relating to any particular issue without being hindered. While the permitting of free speech will not guarantee that the truth about a particular matter will be discovered and/or communicated, neither will its restriction. However, the unrestricted exercise of the rights of freedom of speech a...