Photos in the eyes of the law

A PICTURE, as they say, is worth a thousand words. Without pictures, we can only rely on words to describe objects and events, and those hearing the words have to visualise these objects and events. It is quicker, of course, to look at pictures of these objects and events.

These days, we take photographs of everything. A reader has asked whether there is any specific law on taking photographs and using them.

The taking of a picture involves another person or an item belonging to someone else. When one takes the photograph of someone else, to whom does the photograph belong? The device for taking the photograph may belong to someone else and yet the image to another.

There is little in law that deals directly with photography. However, various laws apply to photographs that are taken and used. There are various situations where action can be taken against one person or another, depending on how the photograph is produced and how it is then used.

However, the basic thing is that one does not have an absolute unfettered right to one’s own image.

Another person can take your photograph and in some ways use it. A person may be sitting in the privacy of her own home, but a picture of him may be taken from outside the house. The irony of it is that the right to reproduce the picture belongs to the person who makes the arrangement for the taking of the photograph, and not the person who appears in it.

Even if a person enters the premises without permission and takes a photograph, he still owns the photograph. However, he would have committed a trespass.

The right to take pictures of another person and the related right to use it, are not without limitations. If the picture is used in a harmless way, then the subject cannot have recourse to prevent the use of the picture.

However, it is not always a straight-forward matter. This is because it is unlikely that the picture is merely reproduced when used in different situations. The same picture can convey different messages, depending on the context.

For example, a picture of a scantily-dressed woman in the privacy of her own home (perhaps beside the swimming pool or in the garden), may by itself convey no unfavourable or adverse message because the person is a private person.

However, the same picture published in a calendar and sold to the public or a limited audience may be cause for the person to feel aggrieved and, depending on circumstances, defamed. In such a case, if defamatory proceedings ensue, it will not be a question of who owns the image.

On the other hand, if the picture is used with the consent of the person photographed and the photographer, it would be a matter of contract as to how it can be used and on what terms.

If the picture is used in a way contrary or different from what has been agreed to, then any differences that arise will have to be resolved on the basis of what has been agreed to and the subject matter will move into the arena of the law of contract.

Where what has been agreed to is not complied with, and on the contrary, it is breached, then it will be a case of breach of contract. Here the principles of the law of contract will apply.

In this context, where the contract stipulates a penalty or compensation that has to be paid, then Section 75 of the Contracts Act 1950 will apply and it provides for compensation with a cap.

On the other hand, if no compensation or formula for calculating the compensation is stipulated, it is up to the party that feels aggrieved to prove to the court its actual loss.

The law of copyright also has a role to play with regards to photographs. As the law originally stood, the copyright in a photograph belonged to the photographer. In the earlier days, when cameras were not ordinarily available, the position was that one went to a photo studio to have his picture taken, and the shop retained the copyright. For that purpose, negatives were retained.

However, at present, the copyright in a photograph belongs to the person who makes the arrangement for the taking of the photographs. But where a person takes a photograph himself or asks another to take a photograph of him, then he will own the copyright.

On a different note, the copyright for a photograph is a property right. In a way, it is an intangible right because it is not a right to the physical ownership but reproduction rights.

The copyright owner can transfer the right by assigning such interest to a person of his choice. Of course, the assignment may be for a limited period or absolutely.

In another instance, the owner may still retain ownership of the copyright. However, he may allow another to use it by way of licensing. Licensing has to be for a fixed period. However, licensing may be used to give permission to another person to use a photograph in a certain area for a certain purpose.

The discussion of this subject would be incomplete without mentioning the fact that one is prohibited from taking photographs in a court of law. This would amount to a contempt of court. In addition, under the Official Secrets Act 1972, one is prohibited from taking photographs within a prohibited area.

There are other situations in which a person may be refused entry to a function, let along take photographs. But if a photographer gets in and takes photograph, it would merely be a civil breach in the nature of trespass and not an offence.

The ways we take photographs these days raise new facets. In a selfie, the human image is also the owner of the copyright. In courts, proceedings are being officially recorded and therefore available unless restricted.

Any comments or suggestions for points of discussion can be sent to The views expressed here are entirely the writer’s own.

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Opinion , "Bhag Singh" , "Law For Everyone"


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