Generally speaking, the body of law specifically relating to photography in Western legal systems is small. However, as photography is an everyday pursuit, it is covered by the many and wide-ranging civil and criminal laws which govern society in general, e.g. libel, obscenity, and employment law.
The legal framework for both amateur and professional practice is the same. It is in fact the application of general law to a specific activity—photography. Photographers clearly operate within society and, in so doing, have duties and responsibilities as others do. Photographic practice is therefore mainly regulated by the general laws of the country or state in which the practice is taking place, rather than by specific laws enacted to control photographers and photographic practice.
There is an ongoing movement to harmonize some areas of law across the European Union, e.g. copyright and employment. In general, however, custom and practice need to be considered separately in each country, especially where photography is taking place in socially or politically charged circumstances. Even in the UK, where press freedom is firmly established, photographers have often collided with authorities such as the police, and the civil or criminal law has been used to restrict photographers' freedom to work unhindered, e.g. at public demonstrations or on private property.
Although there are areas of law common to many legal systems, the nuances of national law are important, and too complex to be discussed here in any detail. The following can therefore only be an introduction to a few issues of obvious relevance to photography, namely the protection of the photographer's property rights in a work (copyright); the protection of person (s) who may be the subject(s) of a work (privacy); and the more general protection of society (obscenity, child protection).
Today, copyright law in the UK is governed by the 1988 Copyright, Designs, and Patents Act (CDPA), relating to images made from 1988 onwards, and the 1956 Copyright, Designs, and Patents Act, for those created prior to 1988. Whilst there is similarity between the two Acts, the 1988 Act extended the rights of photographers in line with those enjoyed by other artists, such as authors, painters, and sculptors. The 1988 CDPA describes a photograph as ‘a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film’. The phrase ‘irrespective of artistic quality’ also appears in the CDPA, which is important because a copyright is maintained whatever the quality of the photograph. In addition to many general provisions, the CDPA also covers areas which are specific to photography: photographers in employment, commissioned photography, ownership of negatives, copyright protection, duration of copyright, assignment of copyright, moral rights, false attribution, rights to privacy, copyright infringement, etc.
In the USA, copyright is defined by the 1976 Copyright Act and awards a similar level of protection to ‘artistic works’ as in the UK. The duration of copyright of photographic or other artistic work in the USA is 70 years from the death of the creator of the work. Due to European harmonization, from 1996 all countries of the EU also have a duration of copyright of 70 years (retrospective for works made between 1989 and 1996).
Because of the excesses of some elements of the media and the unethical behaviour of a few photographers, privacy is an ongoing subject of debate in Britain, with high-profile cases (usually involving tabloid newspapers) fought out expensively in the courts. This is because, at present, the UK does not have specific laws preventing the taking of photographs that infringe a person's privacy. Whatever the future may hold in this regard, for example as a consequence of rulings by the European Court of Human Rights, photographers should be aware that there are other laws that may be applied to control the acquisition and use of photographic images. This could include the laws of trespass, libel, and breach of confidence. However, there is no British equivalent to American rights of privacy and publicity.
In the USA, whilst copyright is protected by federal law, privacy and publicity rights are subject to individual state law. While some states have such legislation, others do not. California has some of the strictest privacy laws in America, enacted in 1999 after lobbying by a group of privacy-conscious Hollywood actors.
Even before the debates following the role of paparazzi in the death of Diana, princess of Wales, in Paris in 1997, France was reputedly one of Europe's most difficult environments for photography. The law of 17 July 1970 had been framed in draconian terms to protect the individual's privacy, forbidding unauthorized photography, even for private purposes, of any person, however well known, in public or private, singly or in a group, or even of their animals or other property. Particularly since the 1990s the law has been applied so rigorously that photographers, especially photojournalists, have protested strongly at its implications. A special organization, L'Observatoire de l'image, backed by photographers and other media professionals, now exists to monitor developments and lobby for change. Not only celebrities but many ordinary individuals have used the 1970 law to protect their privacy. The work of humanist documentary photographers such as Cartier-Bresson, Doisneau, and Ronis, many of whose photographs depicted anonymous people in the street, would probably be impossible today without the risk of legal action. Indeed, both Doisneau (for the 1952 Kiss at the Hôtel de Ville) and Ronis (for an even older picture of a Parisian flower seller) eventually found themselves in court.
Over the years there has been a shift in what is considered to be obscene, in line with larger changes in culture and social mores. However, the notion of obscenity is subjective, creating perennial problems of definition for legislators, the police, and other agencies. In a global media environment, the fact that standards of tolerance vary from country to country (and often within countries) adds to the complexity. In the last resort, especially where there is a defence of artistic merit, boundaries may have to be established in court. Since the late 20th century, the publicity surrounding child abuse, combined with the spread of the Internet, has heightened concern about indecent pictures of children. In the UK, the 1959 Obscene Publications Acts and the 1978 Protection of Children Act (extended by the 1994 Criminal Justice Act to include not only photographs but ‘pseudo-photographs’ produced by image manipulation software) deal with this sensitive area of image making. Today, as in the past with nude or erotic photographs of adults, pictures of children involve complex problems of moral and legal judgement, and troublesome issues such as the borderline between art and pornography, the status of private family photographs, and the immunity or otherwise of materials in museums or university libraries.
— David Matthews
Bibliography
- Gross, L., Katz, J. S., and Ruby, J., Image Ethics: The Moral Rights of Subjects in Photographs, Film, and Television (1988).
- Berkeley, A., Focal Guide to Photography and the Law (1993).
- Almasy, P., ‘Le Photojournaliste et la loi’, in P. Almasy et al., Le Photojournalisme: informer en écrivant des photos (1993).
- Cassell, D., The Photographer and the Law (1997).
- The ABCD of UK Photographic Copyright (1999).
- Rozenberg, J., Privacy and the Press (2004)
