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Re: [OM] Nathan's PAD 30/10/2010: cute Danish couple

Subject: Re: [OM] Nathan's PAD 30/10/2010: cute Danish couple
From: Andrew Fildes <afildes@xxxxxxxxxxxxx>
Date: Mon, 1 Nov 2010 09:26:18 +1100
Agree with other comments about conciliation but the law is very clearly 
defined. It's common law and ironically, common to most English-speaking 
countries. The concept of public gaze specifies that if you are in a public 
place or, in many cases, visible from a public place, then you cannot control 
how others see you - or photograph you. This has been confirmed by many cases, 
most of which turned on the intent of the photographer rather than the right to 
photograph. Common law has to be quite specifically suspended by legislation in 
order to make photography illegal, as in the case of military installations. 
There is some argument here about National Parks administration charging for 
licences to photograph commercially in a park as there is no specification 
legislation, only a regulation which, of course, they wrote themselves.
The issue has become clouded in recent times by paranoia over paedophilia and 
terrorism. But to stop someone photographing children in public or to bring 
them to a trial, you would have to prove the intent (mens rea) to commit a 
malicious act. If your behaviour is provably unacceptable, you'll probably be 
charged with some form of 'offensive behaviour'. 
Commercial use is also well defined. If the image is used to sell a product as 
an inducement to buy, that's commercial. If it can be argued, even in the 
flimsiest way that the image will be sold as an artwork of for public interest, 
then there is no commerciality. Thus the test shots I shoot for the magazine 
when I review a camera are considered to be 'in the public interest', as is any 
general image used in journalism. Newspapers would look a bit drab if that was 
not the case. Equally, any image I care to put in a frame, hang on a wall and 
sell is equally protected - except for those I took in France where the law has 
been changed. Still, if I sell it here then the 'crime' has been committed 
here. Hmm, tricky.
So relax Bob - anyone who is visible in any image that you sell as an artwork 
has no call against you. Really.
However, non of the above will stop you getting beaten up but it will be 
helpful in court when they charge your attacker with assault.
And in the squillion dollar law suit you bring subsequently.
Andrew Fildes
afildes@xxxxxxxxxxxxx



On 01/11/2010, at 1:15 AM, Bob Whitmire wrote:

> The real problem is that there's not a lot you can do with them after you 
> take them unless you get a release from parent or guardian. There's some case 
> law that suggests the photographer can display and even sell exhibition 
> prints without any form of release, but if he or she strays into the 
> commercial arena as defined by, say, selling the aforementioned picture to 
> Cheerios, then the trouble will start.

-- 
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