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Property rights in Australia - filling in property field in photo submissions

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When the submission form asks me if there is property, I've been filling in "no" for public buildings, and "no" for sculptures. But it seems that Australian law makes exceptions when things are photographed for commercial use. Should I fill in "yes" for all buildings-as-property questions without checking the law?


Everything not human is property, so that means that if I photograph an expanse of fields, I should contact every farmer who has a field with a corner in the photograph. Apparently even graffiti requires a release! Here is some of the Australian law

The recent settlement achieved for a U.S. sculptor for unauthorised use of a photo of his public sculpture engages the debate about the radical differences between Australian and U.S. laws on copyright for sculptures.  In Australia, the Copyright Act 1968 (Cth) (Copyright Act) specifically allows the taking, and use of, photos of public sculptures without the sculptor’s permission.  In the U.S., it’s copyright infringement.

Australian law on Sculptures in public

The exception to copyright infringement under Section 65 of the Copyright Act allows anyone to make drawings, take photographs or film a sculpture that is on permanent public display, without infringing copyright in the sculpture.  A work is on permanent public display where it is in premises open to the public or permanently in a public place.  Permitted reproductions extend to the adaptation of the work into digital form for both commercial and non-commercial reproductions.  However the exception does not extend to other artistic works, such as paintings, murals or mosaics that may be permanently on public display.  In these circumstances, permission of the copyright owner is required to avoid infringement.

As a consequence, where sculptures are on permanent public display in Australia, commercial uses are allowed without the permission or remuneration of the sculptor.  That is, a sculptor has no legal grounds to demand payment for any visual reproduction of the sculpture as his or her copyright does not extend to the general control of reproduction rights if the sculpture is publicly situated.  The rationale behind the section 65 exception appears to be the difficulty in controlling or preventing the copying of public artworks such as in stopping tourists from taking photographs of sculptures.  The logic is flawed when one considers that the rule is not applied to public murals or even graffiti.

  • In Australia most forms of "unauthorised" photography have in fact been authorised since the 1937 High Court decision in Victoria Park Racing v. Taylor (1937) 58 CLR 479 (at p.496). This was reaffirmed recently in ABC v Lenah (2001) HCA 63, where the Court ruled that despite the passage of decades since Victoria Park, any concept of a Tort of invasion of privacy still does not exist in Australia.

As Justice Dowd put it with ruthless clarity in R v Sotheren (2001) NSWSC 204:
A person, in our society, does not have a right not to be photographed.

Summary: The short answer is that a photographer seems to have very wide rights in Australia - more so than in many other countries.
When in a public place you can take photos of people also in public, and of people who you can see from the public place, with some limitations re looking into buildings etc. There are some limitations on photos of armed forces property - which are probably of no great surprise. When on private property you may take photos but must stop doing so if requested to do so by the owner or their agent. Photos that you have taken up to that point may be retained and used.

You are not restricted when in public from taking photos of children or 'famous' people and they may block your line of vision but may not actively interfere with you - not legally anyway :-).

 Should I fill in "yes" for all buildings-as-property questions without checking the law?

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Remember you're supplying an international market including countries without freedom of panorama. You can't restrict your sales to Australia- you'd be mad to do so- so the situation in Australia is of minor importance. Fewer than 1% of my sales are to Australian markets.

Anyway ticking 'no' and 'no' isn't accurate- buildings and scupltures are property.

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