Archived posting to the Leica Users Group, 1999/04/04

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Subject: Re: [Leica] Re: Getting Close and Discreet
From: "Gareth Jolly" <>
Date: Mon, 5 Apr 1999 10:35:04 +1000

Can't comment on America, but in Australia:

1.  There is no property in a 'spectacle'.  This was established in a case
where some enterprising small business operators built a tower next to a
racecourse, so they could watch the races and broadcast a radio commentary
on them.  The High Court upheld their right to do so.  The race operators
had no 'property' in the spectacle of the race going on.

2.  You can defame somebody by 'publishing' a photograph.  'Publishing'
means showing it to any person other than yourself.  The classic example was
a photograph of an Australian rugby player which a news journalist took in
the change rooms which, if you looked hard enough in the shadow details,
exposed the player's nether regions.  A jury awarded him $300,000 -
subsequently reduced on appeal.  (There was a famous line of cross
examination in the case, where the player's QC tried to get the editor to
identify what precisely was in that shadow detail.  After some evasion on
the editor's part, the QC asked 'Well what is it? A duck?')

(This varies from state to state - in some states, truth is an absolute
defence to defamation)

You can also defame somebody by inaccurately or imprecisely captioning a
photograph (e.g 'Mr Smith pictured with his girlfriend' when in fact it is
his wife)

3.  In certain circumstances, you may breach someone else's copyright in a
photograph.  An obvious example is photographing some one else's artwork.
There are some exemptions in copyright legislation concerning this.  A more
subtle example might be copying someone else's composition - before anyone
shouts me down on this, I have advised in a case where an American
photographer threatened proceedings over this.

4. In some circumstances, admission to private property conditional on you
doing or not doing certain things (e.g not taking photographs or assigning
copyright in photographs you do take)

5. Generally, in Australia there is no generalised right to privacy - at
least, an enforceable right anyway.  This is in the process of changing
though - particularly in New South Wales.  In particular circumstances,
though, limited rights to privacy do exist.

6. On occasions, publication of an image of a person may falsely suggest
they are associated with, or are endorsing a product.  This can amount to
unlawful misleading and deceptive conduct or 'passing off', enabling them to
sue the publisher.  e.g a photograph of a famous athlete used in an ad for

7.  In some circumstances, there may be legislative restrictions on
photography (e.g in court rooms)

I should add the caveat that this is based on my law student days, so could
firstly be a bit inaccurate and secondly a bit out of date... Rely on it at
your peril...


- -----Original Message-----
From: Walter S Delesandri <>
To: <>
Date: Monday, April 05, 1999 9:40
Subject: Re: [Leica] Re: Getting Close and Discreet

I never remember a time when people on the street WEREN"t
alarmed and annoyed by street photographers....but now they
have a blood-sucker (attorney, for non-Texans) or a 'bleeding
heart' (Kalifornika or Boulder, possibly?) on every corner waiting
to defend their "rights".....
A million years ago, in Journalism school, we learned that one could
photograph anyone not on private property....if the photos were
not used "commercially" (editorial, reportage, and some 'art' were
OK)...I'm sure that this has changed with the loss of most of our
personal freedoms, I just don't care to keep up (or shoot, for
that matter).
Bear in mind that some locations, that which the "offended" persons
couldn't avoid, such as doctors offices, pharmacies, basic
needs sources, were somewhat 'protected' as the people HAD to
go to these places....but the street, and most 'public' areas,
were fair game....

I'm less scared by the 'dangerous' people on the street than I am
by our government and it's imps, these days....I can put up a
pretty good fight, and still run like hell if need be, but that
ain't what I'm worried about these days....

I'm sure that our 'legal-eagles' (25% of the list?) will "straighten
me out" and shed more light on the subject, as always....


1999, D Khong wrote:

> snip
> > And in former
> >times Robert Capa already said: If the picture isnīt good, you wasnīt
> >close enough.
> I wonder if that statement refers to photojournalism i.e. pictures of
> people and events.  Robert Capa worked in an era when it was probably not
> so objectionable to stick a lens up peoples' faces and snap their
>  We are now living at an age when privacy, individual rights, copyrights,
> and other what-have-you rights threatens a red nose for those who profess
> freedom of expression, and other similar blah blahs.
> How many of us feel that it is now getting more difficult to even take
> street photographs without arousing suspicion, fear, anger, or even threat
> of bodily harm from the subjects?   What are your ways of overcoming these
> barriers?
> Dan K.