It’s a mystery to me – the game commences for the usual fee – plus expenses confidential information – it’s in a diary this is my investigation – it’s not a public inquiry*
Back from the motorway the valley ended at two wrought iron gateposts. A five-barred gate hung open. A sign read: PRIVATE ROAD. NO ADMITTANCE. It was warm and silent and the air was full of the tomcat smell of eucalyptus trees.
I drove in and along a gravel road, up a gentle slope and down the other side into a shadow valley. Off to my right was an empty swimming-pool. Behind it was the house.
Over to my left were the sculptures.
I cut the engine, glided off the path and silently halted under the cover of the trees. As I picked up my fully-loaded Rollei and started to shoot, the bullet whistled past my ear and hit the front tyre …
Photographers frequently find themselves in unwelcome situations where invasion of privacy becomes a tricky professional problem, which can be a serious impediment preventing them shooting buildings, artworks, people, animals and other objects; some incensed subjects – or owners and guardians thereof – even cite copyright law to justify their non-cooperation often amounting to physical retaliation. This is a serious subject worthy of consideration not only for the benefit of photographers, but also for those professionally involved in trying to use anything which appears to be freely available in the environment as a resource for the making of images including visual artworks.
Let us examine four common types of resource frequently required to be used: buildings; sculpture; works of artistic craftsmanship; persons, animals and other miscellaneous things.
An example of this problem recently arose when a photographer tried to photograph a government building prominently situated in London. Police officers guarding the place tried to deter the photographer by making the intriguing statement that the copyright in the building belonged to the Crown, and trying at one point to seize the camera and film. This is nonsense.
Copyright in works of architecture does not allow the copyright owner to prevent anyone taking a photograph or making a painting or drawing. However, access to the building may be relevant: if the photographer needs to enter private land surrounding the building to get close enough to shoot, that may justify police officers or others in authority on the land taking action to deny access or eject such trespassers – but they must be careful not to use more force than is reasonable and necessary in all the circumstances; and, even so, the confiscation of cameras or film could well amount to unreasonable and unnecessary interference and may even be of itself a criminal or civil wrong against the photographer.
If the photographer has been granted permission to enter public land, through payment or otherwise, it might be a breach of contract or licence to take photographs if that activity has been expressly or impliedly forbidden by the terms of entry. But breach (anticipated or actual) of such a term would not alone necessarily justify such an eviction or confiscation. With government buildings, it may possibly be a breach of the Official Secrets Acts (say, on defence property or other national security installations/buildings) but even that would be a rare case, and notices, fences or other deterrents are usually abundantly evident. The recent occurrences at Greenham Common and elsewhere are examples of how far people might go to beset such sites without breaking the law.
Finally, the law relating to breach of confidence might be relevant to a photographer given access to such sites for specific confidential purposes: should the parameters of such confidence be broken, there might be a case in law to sue the photographer for breach of confidence. But the publication of material obtained in breach of confidence might be successfully defended on the grounds that to publish was in the interests of the public.
It should be noted that police officers do have certain special powers and/or sufficient knowledge of the law (not usually copyright law) which might well justify their arresting anyone who appeared to them to be about to commit a criminal offence or cause a breach of the peace – all of which is most unlikely in relation to public government buildings.
Many photographers will have experienced the owner of a private house rushing across the street/garden wall to trying to prevent the taking of a photograph of their house and so on. Courtesy demands prior permission; the law does not. However, such a situation might nevertheless provoke a breach of the peace (i.e. the owner might get physical) and if a police officer were to be present he might well be justified in arresting both the photographer and/or the house-owner/occupier for conduct likely to cause a breach of the peace – each to be taken before a magistrates court to be bound over to keep the peace.
The strict legal position of the subject of the shot – the private property – is pretty clear. As with publicly sited buildings, there is no copyright law restricting the taking of photographs, making paintings or drawings; and provided the artist is not physically trespassing on private land, no civil or criminal wrong will have been done to the building or its owner/occupants. If artists stand in a public street, it could be argued that they are obstructing the free passage of the highway (even unintentionally) which might render them liable to be moved on by a police officer and/or failing that, to be arrested and prosecuted (maximum penalty is a £200 fine).
Being invited on to private property and then photographing buildings there may be in breach of an express or implied term of the contract or permission to enter forbidding such activity; and may even be a breach of confidence -as in the case of public buildings (see above) when the same consequences might follow. Prior express permission to photograph, paint and draw is always the most trouble-free and professional course of action, but in many cases this is just not possible at the time the image needs to be made. This conflict between two freedoms – one of expression and the other from invasion of privacy – is a curious and unique feature of our law and therefore requires a sensitive and mature approach by all concerned; in this way, we have for centuries avoided the need to legislate and thereby further limit these freedoms we all enjoy.
Irrespective of ownership, a sculpture permanently situated in a public place/ space/building (i.e. a permanently sited piece in a place to which the public has access, even temporarily, on payment or otherwise) can be photographed, painted or drawn; to do so is not an infringement of the copyright. Thus, any sculpture permanently situated in a public gallery/park/street/building is in the public domain for copyright purposes. It follows, therefore, that public access to it will be possible and so the law of trespass is largely irrelevant during the times for permitted public access. But it is possible that terms of entry to the public place strictly forbid the taking of photographs and so on. This is perfectly lawful as a requirement, and could justify eviction (using reasonable force) though it is doubtful whether confiscation of equipment (cameras, film and so on) would be lawful in such circumstances. In many public galleries, particularly abroad, cameras are required to be ‘cloaked’ before entry is allowed – a sensible arrangement which thereby avoids unnecessary and unpleasant invigilation and/or incident. It is continually surprising that this practice is not more widespread in this country, partly in order to protect the making of shoddy reproductions and partly to strengthen the marketing of the excellent reproductions and facsimiles that our public galleries now produce and from which they generate vital income.
NB. The copyright in paintings, drawings, prints and photographs – wherever situated – will be infringed by the making of photographs or any other copies without the copyright owner’s permission (i.e. not the gallery’s permission, but the artist’s permission in most cases).
The Chandleresque abortion with which we started is a classic example of this problem: sculpture situated temporarily or permanently in a private place is covered by the normal copyright protection afforded to all other artworks: no copying (except for private study, criticism or review with acknowledgement and credit). Our protagonist might not be in breach of copyright (if he can prove private study, criticism or review – and who believes that?). However, and more fundamentally, he is probably a trespasser – unless he was expressly or impliedly invited to go through the ‘private’ barrier and, even then, is likely to be in breach of his confidential and/or contractual permission to enter without taking photographs. In the States they use guns (almost with impunity, it appears); here, we don’t, so perhaps it’s worth the risk. (Even here, it’s dangerous enough since it’s easy to be mistaken for a pheasant or a fox and get shot anyway!).
Works of artistic craftsmanship
This curious creature is copyright law terminology for anything made by an artist which is not a painting, sculpture, print, drawing, building or product of photography: it might, therefore include bas-reliefs, furniture, light sculpture, holography, mixed media works or installations, land art and so on. Copyright protection is given to such works and applies to them in precisely the same way as it does to sculpture (see above). Thus, if permanently situated in public places, they can be photographed, painted and drawn; and the comments regarding trespass, private study and so on relating to sculpture, equally apply to these works.
People, animals and other miscellaneous things
Any person or animal in a public place can be photographed, painted, drawn or have any other image made of them – witness the Royal Family (including its Royal Animals). Copyright law offers them no protection, nor does the law of trespass or public nuisance. However, should a police officer anticipate a disturbance of the peace from the argument/reaction and so on, anyone involved could be arrested be brought before a magistrates court to be bound over to keep the peace. The artist might also be guilty of obstructing the free passage of the highway, and be likewise liable to arrest. (See above).
As for things such as motor vehicles, bicycles, boats, planes and virtually anything open to public view (i.e. anything except paintings, drawings, prints or products of photography) they are equally in the public domain to be photographed or otherwise have their images taken. The breach of the peace and highway obstruction considerations equally apply.
Copyright protection is given to all visual artworks situated in private places and to sculpture and works of artistic craftsmanship temporarily in public places. Protection, that is, so long as copyright has not expired; it normally lasts for the artist’s lifetime plus fifty years (for the heirs) except for photographs and prints which lasts forever until published and then for fifty years from publication. All other things, animals or people are not protected by copyright law.
However, the law of trespass is clearly relevant and all the considerations discussed in that regard thus far, equally apply to persons entering private property to take images of people, animals and things.
More important is the law of breach of confidence. If a photographer is permitted by a person to take shots in private (whether of the permitted, their animals or things) for confidential purposes, it would be a breach of confidence for such shots to be used for purposes other than was confidentially agreed; in such a case the permitter could sue the photographer for damages for breach of confidence. It is chiefly for this reason that models, for example, normally sign a ‘model release, form’ before giving their professional services. This usually gives the photographer permission to use the photographs for the purposes specified in the release, thereby avoiding any future disputes as to what was envisaged by the model and photographer. These breach of confidence rules, including ‘model release’, could be applied equally to the private shooting of things or animals, the owners of which might wish to exercise control of the use of the images they have allowed to be made.
One further, novel question had recently arisen relating to privately situated ‘things’, such as standing stones and other such manifestations in the environment. Two issues arise: the first, a red herring, relates to copyright; irrelevant – even if such things could be treated in law as sculptures or works of artistic craftsmanship (forgive my legal doubts Mr Demarco!) any copyright would have expired before history began. The second, a pink herring, relates to trespass; if the site can be seen from a public place, then no trespass could occur by shooting the thing from that public place and, indeed, photographers doing so would acquire copyright for their original shots. If access is only possible by trespassing or gaining permission to enter the private site, then trespass and/or breach of contract/licence/confidence is possible and so the considerations discussed above in that regard are highly relevant. This interesting problem has been mentioned in some detail because there are many private individuals and organisations who need to generate revenue (by charging for access to sites and for the taking of photographs) in order to preserve and maintain these important parts of our heritage. This raises more questions than it answers about our collective and correlative rights and responsibilities in relation to our environment, for which there is no easy solution.
What we have explored, and usefully it is hoped, are the serious difficulties artists are likely to encounter when carrying out their legitimate researches and works. And, in conclusion, it must be stressed that all situations are unique and no single diagnosis or prescription can be given for all the ills that may occur; but sensitivity, professionalism and careful foresight (including expert legal advice) are the qualities required to avoid most pitfalls.
© Henry Lydiate 1983
*© Chariscourt Ltd 1982