It is my understanding that the following are the rules:
a) Anyone can take photographs of anyone (kids or adults) in a public place.
b) The photographer does not need to obtain permission from anyone (parent, child, festival organiser etc)
c) Photographer owns the copyright to the picture. (unless you took the picture as part of your employment - then your employer owns the copyright or if you were comissioned to take the photo)
d) Can publish the photo publicly but not for commercial purposes. ie you can not turn it into a TV advertisement for some product.
e) Picture must not embarrass the child - The test that is applied is "Would a reasonable adult consider the photo demeaning of the child". Note what the kid thinks is irrelevant.
f) The picture must not be porn so for example even if taking a picture of a kid in their togs at the beach does not embarrass the kid then it may still fail under the porn test.
g) On private property eg school, sporting club, church youth group, the property owner can place their own restrictions and it is best to get permission from the property owner. (Somewhere the guidelines for photographing kids sport say that you get the permission from the two team managers)
h) In a situation like a school or youth group, there may be implied expectations of privacy associated with duties of car or Loco-parentis (however that is spelt) and in those cases it is best to clarify by getting all parents to sign a waiver allowing photographs including photographs by other kids and parents as well as photographs that maybe used for promotional purposes. [I need to find the reference for this]
i) You can not identify kids who are under the protection of the state (Wards of the state)
Government Resources
So what are the rules?
http://www.ccypcg.qld.gov.au/pdf/publications/brochures/children-and-the-media/Corporate-Fact-Sheet3.pdf
Is a fact sheet from the queensland Government titled
Tips for parents on photography of children and young people
Key quotes:
| Quote | Coment |
"It is important that children and young people feel confident about their achievements, and having a visual record of successful moments, such as winning a sporting event, can reinforce this." | |
"It is prohibited under s189 of the Child Protection Act 1999 to publish information which identifies, or is likely to identify, a child or young person in the context of intervention by the child safety system without the written approval of the Department of Child Safety’s Director-General2." | We obviously do not know if any of the kids fall into this category so we do not name any kids. |
Private property There is a common law understanding when a person enters private land that they consent to any requirements that the property owner may impose upon them. This means the property owner, for example a school or sports club, may not permit photographs or videos of events held on their land to be taken. However, there is nothing to prevent a person from taking photos from outside the borders of private land, regardless of the property owner’s preferences. | Not private property. -> Public property |
Public places There is currently no one specific piece of legislation preventing people from taking photos of children and young people in public places, unless the person photographing or filming creates a ‘public nuisance’. This only applies to the photographer or camera-person if their conduct is ‘offensive’ or ‘threatening’ and likely to interfere with public enjoyment of a public place (under s6 of the Queensland Summary Offences Act 2005). | Well even that sounds logical. |
Indecent photographs of children and young people It is against the law to take indecent3 photographs of a child under the age of 16, or to involve a child in any material which exploits them. | Well if the choir uniform is indecent then we are really in trouble. |
COPYRIGHT
There was a suggestion that the video violated the copyright of the choir uniforms or words like that.
This web site "http://photorights.4020.net". (although it is focussed on NSW law, it is very likely that it is equally applicable in QLD because I believe copyright is a federal issue).
states
"no part of the Copyright Act prohibits any kind photography!"
MUST CHALLENGE
It seems (although I do not have a reference) that the school does have to challenge my taking and posting of the video otherwise they could get into trouble for not exercising some kind of care and diligence thing. And I of course have to smile politey and publish anyway - quite legally.
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