Assgmnt 212 ~ Working to a project brief

For the purposes of this course I have had to fit a project brief around my studio portrait sessions.

I initially received a verbal request from family members for a portrait of them as individuals and one each of father with son and mother with daughter.  This amounted to a total of six images which could be mounted in box frames to hang on a wall.

The resources I have available include the college studio which is fully equipped for portraits including a white backdrop, lighting including Bowens Gemini lighting kit, soft boxes, barn doors and various colour gels as well as Continous lighting kits which replicated midday light at 5500K.

In addition I have my Canon 5D Mk2, 50mm F1.8 and 85mm F1.8 prime lenses, and 2 Kingston 4GB CompactFlash memory cards.

Preparation for the shoot will include time spent with the clients discussing what type of shots they require, head and shoulders or full body shots, whether they prefer all the frame in focus or a shallow depth of field, what type of finish, glossy or matt, how they want the finished portraits framed, as well as a discussion of how the shoot should progress, the poses needed and any time constraints on studio use and client availability as well as the actual shoot time.  I estimate the preparation and shoot time in a professional studio to take approximately 1hour with post production and forwarding to a printing company taking another hour.

Costs will include any equipment or studio hire, printing and framing as well as my labour and expertise.

Legal and ethical considerations (WIPO, World Intellectual Property Organisation) Website. 

Photographers and users of photographs face certain risks when taking and publishing photographs. This article provides an overview of the general legal principles applicable to taking photographs of copyright works, trademarks and people.
It is written for photographers. However, most lawsuits are filed against the person who uses a photograph rather than against the photographer. All businesses that use photographs (e.g., in their advertising, product packaging, website or business brochure), therefore, should be aware of potential liabilities.
It is true that the applicable laws of countries are, broadly speaken, similar. Yet, there are important differences.ⁱⁱ It is impossible to deal with here every law applicable to photographyⁱⁱⁱ, or to discuss the relevant laws of all the countries worldwide. This article, therefore, cannot be a substitute for legal advice in a particular business context. To know how the relevant laws apply to specific facts and circumstances, please seek advice from a competent local lawyer.

1. Making Photos of Copyright Material
Advertising, fashion, interior design and lifestyle photographers frequently include paintings, sculptures, craft items, architectural works, jewelry, clothing, toys or other artistic works in their photographs. Often, such items are protected by copyright. Only the owner of a copyright has the exclusive right to reproduce the copyright work. Photographing a copyright work amounts to reproducing it. Therefore, before you take a photo of any copyright work, you need the prior permission of the copyright owner. Photographers who infringe a copyright may be required to compensate for the economic loss, that is, to pay the damages they have caused and sometimes also other expenses, such as legal costs.

1.1 When do you need permission from the copyright owner?

The response to this question depends on your answers to a series of questions about the subject or object to be photographed, and the use to which the photograph would be put to.

1.2 Will the photograph contain an object that is protected by copyright?

Be warned: Copyright law protects a wide range of different types of material. Examples of copyright works that are routinely reproduced in photographs are:

1. Literary works (such as books, newspapers, catalogs, magazines);
2. Artistic works (such as cartoons, paintings, sculptures, statues, architectural works, computer and laser artwork);
3. Photographic works (such as photos, engravings, posters);
4. Maps, globes, charts, diagrams and technical drawings;
5. Advertisements, commercial prints, billboards and labels;
6. Motion pictures (such as films, documentaries, television advertisements);
7. Dramatic works (such as dance, plays, mime); and
8. Works of applied art (such as artistic jewelry, wallpaper, carpets, toys and fabrics).^iv

1.6 Does a special exception apply?

Reckoning with the above, copyright considerations would place enormous restraints on photography since it is impossible to avoid including copyright items in many photographs. Fortunately, there are several legal exceptions that allow you to reproduce copyright works (in a photograph) without permission. However, the exceptions vary from country to country and are not always easy to determine. Exceptions are generally covered by what are know as limitations or exceptions to copyright which are specifically mentioned in the national copyright law, or by relying on the concept of “fair use” or “fair dealing.”^vi
It is not the purpose of this article to provide a full list of all exceptions that you could benefit from. Rather, I explain hereunder some of the most common situations in which you may be free to photograph copyright material by an exception from copyright protection.

Taking photos of buildings

Architectural works are protected by copyright to some degree, but in most countries you may photograph a building, if the building is located in a public place or is visible from a public place. You may also publish and distribute the photo without permission.^vii

Taking photos of copyright works in public places

In some countries, you don’t need permission to photograph certain artistic works that are permanently displayed in a public place (for example, in a park or on the street). You can also publish and commercialize the photograph without infringing copyright.
However, this exception applies only:

• To certain types of works: usually, only to three-dimensional works, such as sculptures and craft. So, you may still need prior permission to take a photo of a painting or a mural in a public place;
• If the work is displayed in public: to photograph a sculpture in a private house, a permission will usually be required; and
• If the work is displayed in public permanently: if you want to photograph a sculpture which is only temporarily sited in a public place, you would usually need permission.

Taking photos to accompany news reports

Usually, copyright works may be used for the purpose of reporting a news. For example, you could take a photo of a sculpture which won a major art prize, if that photo is to be used in a news report on TV or in a media article discussing or announcing the award-winner. However, you will usually have the obligation to identify the name of the creator, and maybe also the name or title of the work that you have captured in your photo.

Taking photos to accompany a review or critique

In most countries, copyright material may be used for criticism or review. For example, if you are taking photos of cartoons for a book which reviews, critiques or analyses the works. Just like for the exception of news reporting, you will usually be required to identify the copyright work and the name of the artist.

Taking a photo of a copyright work to advertise its sale

If you photograph a painting or other artistic work for the sole purpose of advertising its sale, for example, in an auction or sale catalogue, then you will usually not need prior authorization.

Using a copyright work as a background in a photo

In most countries, you will not need permission if you want to include a work in a photograph if its is merely a part of the background or is otherwise incidental to the principle object/subject represented in the photograph. However, it may be difficult to assess what is “incidental.” This will depend on all the facts and circumstances of each case. The question you need to ask is why you want to include that particular copyright work in your photograph. If it is essential to the purpose for which you create the photograph, then it is impossible to say that it is “incidental.” Conversely, if you just want to include the work as something casual and not directly relevant to any aesthetic purpose or commercial reason, then you probably need no permission.
Example: You publish a photograph in a newspaper to illustrate an article concerning some official gathering. The photograph incidentally contains a sculpture in which copyright subsists. Such use is likely to be allowed since the sculpture adds no meaning to the main subject matter. Conversely, if you would photograph that very same sculpture to print it on postcards and sell them, this would normally be a copyright infringement.

3.1 What should you bear in mind when photographing people?

There is no general legal requirement to obtain someone’s authorization to take his or her photograph. However, there are situations where photography can infringe on important social interests such as national security, protection of children, right of privacy, etc. Most of these situations are strictly controlled by national laws and regulations. Irrespective of the legalities, there are also some things a photographer should not photograph for ethical reasons. Certain photographs of people may amount to exploiting the persons concerned or misrepresenting the truth. If you, as a photographer, know the law and one’s legal rights, you will also be in a better position to find solutions that minimize your legal risks.
Often, you may be free to take a photograph of a person, but the way the image is used may give the person shown in the photograph a right to take legal action.

3.2 Are people protected by intellectual property rights?

People are not protected by intellectual property rights. But be cautious when you photograph someone who is wearing something protected by copyright, industrial design or trademark rights. For example:

• A model wearing a piece of haute couture or some jewelry;
• An actor wearing a theatrical costume; or
• A sportsperson wearing a t-shirt with a badge or logo on it.^xi

3.3 When is a permission particularly recommended?

When you snap a picture of another person, two fundamental rights often come into play: the right of the photographer to free expression and the right of the subject to privacy (the right to be left alone). Many countries have privacy laws that affect the circumstances in which you may photograph people and, to a much broader extent, the circumstances in which you may use images of people.^xii Hereafter are described some potential restrictions in many countries on taking and using images of people.

• Intruding one’s privacy

Photographers may be liable for violating the privacy rights of others when they intentionally intrude in an offensive way upon someone’s private domain. You can usually photograph someone in a public place. But if you surreptitiously or without permission view and photograph people inside their homes, business or other private areas, then you are likely to violate their privacy rights. An offensive intrusion can be anything from, say entering an individual’s house under false pretense, to setting up hidden cameras in order to spy.

3.4 Tips for Photographers

The best way to protect oneself against lawsuits - when feasible and appropriate - is probably to get a prior written permission from the subject of the picture, or the (copyright) owner of any object or property to be photographed. Remember, however, that the extent of what may be legally used will be governed by the terms and context of that consent. Even when it is lawful to photograph without any authorization, it may still be advisable to get a permission. In fact, many advertisers and other potential clients demand releases before they will buy the rights to use a picture.
If you license a particular image to a client for purposes of manufacture, sale or publicity, require the licensee to indemnify you for any liabilities arising out of the licensed use of the image. This is usually done through an indemnification clause in the licensing contract.
If you have not obtained written permission for a particular photograph, it is a good idea to add a disclaimer on the back of the picture, such as: “This photograph cannot be modified for commercial or advertising use, nor can it be copied or reproduced in any form without the photographer’s permission.” This may limit your liability should someone else make unauthorized use of your photographs.

Conclusions

Photographers need to know about legal restrictions concerning taking of photographs that include any copyright material, trademark, identifiable person or private affairs. Each time, they need to evaluate whether they should obtain prior written permission, or whether they should warn their client of the potential legal issues.
Similarly, businesses that use images created by photographers need to know about potential legal liabilities. It is a good practice to require a warrant from the photographer that they own or have permission to use any material that they provide to you and that the contents do not violate any law or regulation.
To be in the clear from a legal perspective is not enough. While understanding the laws applicable to photography may help deal with the legal aspects of taking and using photographs, it is highly advisable that photographers and users of photographs also formulate their personal ethical code. Publishing photographs of people can cause the suffering or humiliation of the people depicted in situations that are embarrassing, painful or private. It is in such situations that photographers and users need to balance ethical considerations associated with the taking or publishing of photographs with their legal obligations under copyright and other laws. I would like to conclude with a quote from Bert P. Krages:^xix
“The personal choices that a photographer needs to make regarding material and the manner of execution not only reflect how he or she sees the world, but also reflect how the world sees the photographer as an ethical being.”