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venues
This page considers photography and video in retail, office,
cultural and educational venues.
It covers -
introduction
Preceding pages have highlighted community expectations,
however fuzzy, regarding photography and video in public
places such as streets, parks and beaches. What of images
made in commercial, educational and recreational venues?
Do individuals have a right to take photos and videos
in such locations, on a noncommercial basis or otherwise?
Does such a right override any restrictions asserted by
the owners or operators of the venues?
Those questions are of renewed interest for several reasons.
One is simply the proliferation of camera-equipped phones,
PDAs and other devices that accompany the user to all
venues and are accordingly perceived by some people as
a licence to capture an image. A curator characterised
them as 'stealth cameras', because they are less obtrusive
than the contemporary version of the Box Brownie. A more
critical attribute might be that some users compartmentalise
traditional cameras - deemed to be subject to restrictions
- and the palm-sized object that is their gateway, thus
outside such restrictions.
A second reason is that attitudes among venue operators
have changed. Some aspire to comprehensive management
of their 'brand', for example football clubs. Others perceive
that indiscriminate use of cameras has eroded profits
or will do so in future (for example citing claims that
Japanese consumers use mobile phones to illicitly copy
manga at news stalls rather than paying for the ink-on-cellulose
publication).
Some laments are traditional. Mainstream and adult content
film producers continue to attribute some piracy to people
smuggling video cameras into cinemas. (Much illicit copying
is however a result of unauthorised production runs at
legitimate facilities and unauthorised reproduction of
disks or tapes.) Academics and their institutions fret
about illicit recording of lectures and seminars. Researchers
and manufacturers acknowledge the potential for loss of
intellectual property through
industrial espionage.
principles
A definitive answer about the legality and ethics of unauthorised
photography in such venues is not possible.
In Australia the salient principle is that the owners,
operators or occupiers of private spaces have a right
to restrict what happens in the particular venue.
Such restriction includes placing conditions on any photography,
filming or video within the venue. Conditions might be
an outright ban, authorisation such to specific conditions
(for example that the photographer does not use a flash,
agrees not to provide a copy of the image to anyone else
or agrees not to make commercial use of the image).
There is no formal requirement in Australian statute law
and common law for venue operators or owners to assert
the right prior to an individual entering the venue or
at the time of venue. As discussed below some organisations
draw attention to restrictions through terms & conditions
that are visible at the time of entry or are linked to
tickets and even employment documents. Some organisations
rely on common sense and courtesy. Others are ostentatiously
vigilant during an individual's entry to the venue and
while within the venue.
That principle is blurred to some extent by recognition
in Australian courts (for example in the 2001 Australian
Broadcasting Corporation v Lenah Game Meats judgment,
discussed here)
of unauthorised photography in the public interest. That
recognition is limited and does not provide any
journalist, crusader, neighbourhood pest or law enforcement
official with a licence to conduct covert surveillance
and publishing.
The notion of the house (or shopping mall, cinema, art
museum or other venue) as an inviolable castle is subject
to legislation that in particular circumstances authorises
covert surveillance - including video devices - and use
of emerging technologies such as thermal imaging.
Broadly, however, if you are capturing images in a private
venue you may be required to gain authorisation. That
requirement does not disappear because of the number of
people in the venue (five or 150,000) or the particular
setting (a lecture theatre, concourse within a retail
mall, changeroom in that mall, cinema or sports arena).
retail buildings, offices and precincts
In discussing privacy we
have noted concerns about the privatisation of public
space and about community expectations regarding the regulation
of private property, such as shopping malls and transport
hubs, that -
- are
frequented by large numbers of people, often on a daily
basis
- are
perceived as having the same attributes as urban streets,
squares and parks
- have
a 'communal' nature that is distinguished from individual
retail or other commercial premises through architecture
(you step off the tiles, through the open doors and
onto the carpet as you enter the shop) and 'policing'
by the staff of the particular retailer rather than
by contract security staff representing the operator
of the overall mall.
In essence, entry to a retail mall, office building, rail
station, airport terminal or similar location signifies
the visitor's consent to abide by conditions set by the
owner of that property. The conditions can include restrictions
on photography, whether in 'public' areas such as concourses
or in individual retail premises.
Restrictions do not necessarily cover precincts around
malls and other facilities, and as noted earlier, broadly
do not cover video or photography taken from the street.
(Assertions that any and every ladscape shot of iconic
buildings such as the Sydney Opera House are problematical.)
Making sense of restrictions is inhibited by the blurring
of streetscapes, with office plazas and retail facilities
often seeking to erode traditional demarcations between
private and public property because of aspirations of
good citizenship (we will use some of our land as a privately
owned but publicly used plaza or concourse that is integrated
with 'the street') and as a way of harvesting consumers
and gaining concessions from local governments.
It is also inhibited by inadvertent or deliberate mistatements
by private security
services and even property owners or operators, some of
whom have posted misleading notices claiming that photography
from public land adjacent to premises is illegal (Melbourne's
Southbank has been an area of contention) or have demanded
that photographers hand over film or delete images from
a device. Seizure of a photographer of course lays the
guard and associates open to action for false imprisonment.
Rationales for restrictions vary. Casinos, for example,
have referred to 'security' and 'distraction' in traditionally
prohibiting their patrons from taking photographs or video
of gaming areas. Telecommunication providers refer to
security in banning unauthorised photography by staff
and visitors to their exchanges and other critical infrastructure.
Some rail network operators, particularly those with underground
lines, have sought to stop unauthorised photography since
the events of 9/11. (In Australia there is no blanket
ban on photography within stations or of infrastructure
such as bridges). Restrictions in airports - particularly
international airports - predate those events.
Some retailers have requested photographers not to film
because they are concerned about knock-offs of designs.
Others have more problematical motivations, with some
market stall holders for example stopping photography
because they are dealing in counterfeit
or stolen items or are worried about undeclared income.
sports venues and theatres
Audiences at sports events such as the Olympics, horse
racing and football do not have an automatic and unrestricted
right to capture images of the event while they are within
a private venue at which the event is taking place. That
venue might be privately owned and operated. It might
instead be owned by government, with operation by a government
agency, a commercial promoter or a community organisation.
What of photos and video taken outside the venue, for
example from a location that overlooks the venue (the
Victoria Park case highlighted earlier in this note) and
even from a plane, blimp
or satellite? In Australia broadcasting law places restrictions
on unauthorised video. Photography and audio broadcasts
from outside the venue remain permissible.
Audiences in theatres, at rock concerts and in cinemas
similarly do not have unrestricted rights to make and
disseminate images without authorisation. Recording may
breach a range of intellectual property rights. More broadly
it may breach terms & conditions that were accepted
by the audience as a basis for admission to the venue.
museums
Art museums and other
curatorial institutions have traditionally sought to restrict
unauthorised photography. It is common to encounter a
notice about a ban on cameras (along with food and even
roller-blading!) at the entry to the institution or a
particular exhibition area.
That restriction reflects potential damage to works on
display (including knocking a tripod through a canvas
or vitrine and stress or fire risk from flash powder and
flashlights), disruption of the reverential museum experience
as crowds jostle for the best spot in a blockbuster exhibition
conga line, and efforts to maintain reprographic
rights as a surrogate for intellectual property.
education
Australian universities, although primarily government
funded and often physically accessible by tourists and
others, are regarded as private property. There appears
to be no case law regarding attempts to restrict photography
in quasi-public areas of an Australian university campus,
for example in the landscaped grounds around university
buildings. Any restrictions are not systematically drawn
to the attention of all students or every visitor.
University administrators reserve the right to restrict
admission to university buildings (libraries, lecture
rooms, offices, theatres) and facilities (eg sportsgrounds
and swimming pools). They could thus refuse access by
a television crew to a lecture by a controversial speaker
(eg an academic or visiting politician) and seek redress
under tort law for trespass and unauthorised photography
by an animal rights
or ecoterrorist group.
Authority is delegated to individual academic regarding
the performance of their duties. Some are unfazed by isolated
snaps of their appearance in front of a class or at a
conference; others forbid any recording.
K12 institutions adopt a similar regime, typically with
an emphasis on restricting images of students rather than
teachers. As noted in an earlier page, that has on occasion
resulted in claims that any photography of a student -
or indeed of a minor - is a criminal offence.
Community concern has focussed on voyeurism and stranger
danger but it is worth acknowledging teacher complaints
that unauthorised video of their behaviour in classrooms,
playgrounds and sportsfields has appeared on YouTube and
similar sites. Those sites have also featured instances
of bullying, molestation
and even rape by fellow students.
hospitals
Hospitals ban photography on grounds of distraction and
patient privacy, although tabloid journalists
in the UK and USA have a history of taking unauthorised
images of convalescent, dying or dead patients. (See for
example Kaye v Robertson [1991] FSR 62, following
an 'interview' and unauthorised photography of a UK sitcom
star in hospital recovering from emergency brain surgery).
Some have resorted to buying images from hospital staff;
that is also evident in photos of criminals or other celebrities
in mortuaries.
studies
The Intellectual Property guide
elsewhere on this site provides points of entry to the
literature on image licensing, industrial espionage and
other matters, for example Economic Espionage and
Industrial Spying (Cambridge: Cambridge Uni Press
2005) by Hedieh Nasheri.
Works on privacy (and specifically
on Australian privacy
regimes) and on commercial
security services are highlighted elsewhere on this
site. They include Rick Sarre & Tim Prenzler's The
Law of Private Security in Australia (Pyrmont: Law
Book Co 2005).
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