Photography and the Law: Rights and Restrictions

253 Pages·2019·2.42 MB·english

by  Michael O’Flanagan

Photography and the 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-d epth 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 for 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.
Michael O’Flanagan was awarded a Ph.D. in Law by the National University of
Ireland Galway for his doctoral research on the topic ‘Taking and Publishing
Photographs: The Legal Rights and Restrictions’. His research work was funded
by the University’s School of Law’s R.D.J. Glynn Doctoral Research Fellowship.
Prior to undertaking his Ph.D., he graduated from the University of Limerick with
a Bachelor of Laws (Hons.), a Bachelor of Business Studies (specialising in Marketing
Management) and a Diploma in Business Studies (specialising in Personnel
Management). He was also awarded a Graduateship of the Marketing Institute of
Ireland. A Licentiate of the Irish Professional Photographers’ & Videographers’
Association and a freelance photographer member of the National Union of
Journalists, to-d ate he has won 71 awards (5 Gold, 45 Silver and 21 Bronze Awards)
for his photographic work at the Irish Professional Photographers’ & Videographers’
Association’s Annual Photographer of the Year Awards. The creation and
implementation of national and international advertising, promotional and public
relations campaigns featuring high- quality photographs has formed an integral
element of his marketing management experience over the past four decades.
Routledge Research in Media Law

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Mira Burri
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Journalists, Anonymous Sources and the Law
A Comparative, Theoretical and Critical Analysis
Damian Carney
Public Service Media and the Law
Theory and Practice in Europe
Karen Donders
Photography and the Law
Rights and Restrictions
Michael O’Flanagan
Photography and the Law
Rights and Restrictions
Michael O’Flanagan
First published 2019
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
52 Vanderbilt Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa
business
© 2019 Michael O’Flanagan
The right of Michael O’Flanagan to be identifi ed as author of this
work has been asserted by him in accordance with sections 77 and 78
of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or
reproduced or utilised in any form or by any electronic, mechanical, or
other means, now known or hereafter invented, including photocopying
and recording, or in any information storage or retrieval system,
without permission in writing from the publishers.
Trademark notice : Product or corporate names may be trademarks or
registered trademarks, and are used only for identifi cation and
explanation without intent to infringe.
British Library Cataloguing- in- Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging- in- Publication Data
Names: O’Flanagan, Michael (Photographer)
Title: Photography and the law : rights and restrictions /
Michael O’Flanagan.
Description: New York, NY : Routledge, 2019. | Series: Routledge
research in media law
Identifi ers: LCCN 2018033981 | ISBN 9781138604773 (hbk)
Subjects: LCSH: Photography—Law and legislation.
Classifi cation: LCC K3778 .O35 2019 | DDC 344/.097—dc23
LC record available at https://lccn.loc.gov/2018033981
ISBN: 978- 1- 138- 60477- 3 (hbk)
ISBN: 978-0 - 429- 46839- 1 (ebk)
Typeset in Galliard
by Apex CoVantage, LLC
Contents
Table of cases x
Table of legislation xvi
1 Introduction 1
2 The Legal rights of photographers and photograph
publishers 4
2.1) Introduction 4
2.2) Rights: their origin and types 4
2.3) Right of freedom of expression 5
2.4) Development of photographers’ and photograph publishers’
rights 6
2.4.1) Universal Declaration of Human Rights, the
International Covenant on Civil and Political
Rights and the International Covenant on Economic,
Social and Cultural Rights 6
2.4.2) Council of Europe Convention for the Protection of Human
Rights and Fundamental Freedoms 10
2.4.3) Charter of Fundamental Rights of the European
Union 12
2.4.4) Rights under intellectual property conventions and
treaties 16
2.4.5) Rights under the Constitution of Ireland 16
2.4.5.1) Freedom of expression 16
2.4.5.2) The right to communicate 18
2.4.5.3) Freedom of expression, the right to communicate
and the public interest 18
2.4.5.4) Personal rights 22
2.4.5.5) Private property rights 22
vi Contents
2.4.6) Photographers’ and photograph publishers’ statutory
rights 23
2.4.7) Common law right to take photographs 24
2.5) Brief conclusions 27
3 Photographers’ and photograph publishers’ rights under
copyright law 30
3.1) Introduction 30
3.2) Development of photographers’ and photograph publishers’
rights under copyright law 30
3.3) Copyright and Related Rights Act 2000 34
3.3.1) Statutory recognition of copyright as a property right 34
3.3.2) Statutory defi nitions relevant to copyright in
photographs 34
3.3.3) Originality in an artistic work and the subsistence of
copyright 35
3.3.4) Copyright does not subsist in ideas, infringing works or
copies of made- available works 36
3.3.5) Author of a photograph and fi rst owner of copyright in a
photograph 37
3.3.6) Presumption of knowing a work’s author and fi rst
copyright owner 38
3.3.7) Duration of copyright in a photograph 38
3.3.8) Qualifi cation for copyright protection 39
3.3.9) Registration of copyright is not a legal requirement for
copyright to subsist 40
3.3.10) Copyright owner’s rights 40
3.3.11) Infringement of copyright 43
3.3.12) Exempted acts permitted in respect of copyrighted
works 45
3.3.13) Dealings with rights in copyrighted works 50
3.3.14) Moral rights 51
3.3.15) Remedies available for infringement of copyright and
moral rights 55
3.3.16) Criminal offences relating to copyright 60
3.4) Copyright protection under international conventions and
treaties 62
3.5) Erosion of photographers’ rights under copyright law 67
3.5.1) Copyright reforms resulting from EU law 67
3.5.2) Copyright law review and reform in the United
Kingdom 72
Contents vii
3.5.3) Copyright law review and reform in Ireland 75
3.5.4) Forsaking rights under copyright for publicity 78
3.5.5) Clients grabbing photographers’ copyright and moral
rights 79
3.6) Brief conclusions 80
4 Legal restrictions imposed on photographers and
photograph publishers to protect and enforce the
personal rights of others 85
4.1) Introduction 85
4.2) Restrictions resulting from the individual’s right to privacy 86
4.2.1) Privacy rights under the Constitution of Ireland 87
4.2.2) Privacy rights under Irish statutes 87
4.2.3) Privacy rights under the European Convention for
the Protection of Human Rights and Fundamental
Freedoms 93
4.2.4) Privacy rights under the Charter of Fundamental
Rights of the European Union 94
4.2.5) Privacy rights under the Universal Declaration of Human
Rights, the ICCPR and its Optional Protocol 96
4.2.6) Addressing of privacy rights by the courts 97
4.2.7) Breach of confi dence, misuse of private information and the
right to privacy 98
4.2.8) (1) ECtHR balancing of competing privacy and freedom
of expression claims (2) public fi gure test in privacy
claims 102
4.2.9) Publication of pixelated images 105
4.2.10) Children and their right to privacy 108
4.3) Personal image rights and publicity rights 112
4.4) Right against harassment, stalking, revenge porn and voyeurism 114
4.4.1) Harassment 115
4.4.2) Stalking 117
4.4.3) Revenge porn 118
4.4.4) Voyeurism 119
4.5) The right to a good name 120
4.6) The right to be forgotten 125
4.7) Photography and the property rights of others 128
4.7.1) Private property rights and photography 128
4.7.2) Publicly owned property and restrictions on
photography 130
4.7.3) Photographers and trespass and nuisance 132
viii Contents
4.8) Passing- off: misrepresentation through the use of
photographs 134
4.9) Contractual and accreditation scheme restrictions 139
4.10) Brief conclusions 141
5 Legal restrictions on the taking and publishing of
photographs in support of public interests, through
statutory provisions, on public morality grounds and
under ethical codes of behaviour 148
5.1) Introduction 148
5.2) Restrictions on photographers and publishers on the basis of
public order, security and defence of the state and crime
prevention and investigation 148
5.2.1) Public order 149
5.2.2) Security and defence of the state 152
5.2.3) (1) Unlawful disclosure of confi dential information by An
Garda Síochána (police) (2) retention of, and access to,
communications data 155
5.2.4) Stop, search and seizure powers of An Garda Síochána
(police) 161
5.2.5) Stop, search and seizure powers of United Kingdom’s
police 166
5.3) Restrictions resulting from the individual’s right to a
fair trial 173
5.4) Restrictions on court reporting 175
5.5) Court reporting and contempt of court 181
5.5.1) Journalists and contempt in the face of the court 186
5.5.2) Journalists and constructive contempt 187
5.5.3) Journalists and scandalising the court contempt 187
5.6) Miscellaneous statutory restrictions 188
5.7) Restrictions on ground of public morality 191
5.7.1) (1) Censorship of publications and
(2) pornography 191
5.7.2) Prohibition of incitement to hatred 194
5.7.3) Outraging public decency 196
5.7.4) Restrictions on contents of advertising materials and of
postal packets 197
5.8) Ethical restrictions 198
5.8.1) Press regulation in Ireland 199
5.8.2) Press regulation in the United Kingdom 200
5.8.3) National Union of journalists 202
Contents ix
5.8.4) The Irish Professional Photographers’ and Videographers’
Association 202
5.8.5) Regulation of advertising and marketing communications
standards 203
5.8.5.1) Advertising Standards Authority of Ireland 203
5.8.5.2) Broadcasting Authority of Ireland 205
5.8.5.3) Advertising Standards Authority (United
Kingdom) and Ofcom 206
5.8.5.4) Sanctions for breaches of advertising and
marketing communications codes of practice 207
5.9) Brief conclusions 208
6 Overall conclusions and recommendations 216
6.1) Introduction 216
6.2) Photographers’ and photograph publishers’ rights under
copyright law 216
6.3) Legal restrictions on photographers resulting from the protection
and enforcement of the personal rights of others 218
6.4) Legal restrictions on photographers and photograph publishers in
support of public interests, through statutory provisions, on public
morality grounds and under ethical codes of behaviour 220
Index 224