Legal Guide for Photographers and Photography Businesses

Last updated: 5 September 2021

Legal Guide for Photographers and Photography Businesses – This step-by-step guide outlines everything you need to know from an Australian legal standpoint about taking photographs and starting a photography business. We cover:

  • Your shooting rights
  • Protecting your images
  • Licensing your images, and
  • Selling your photography services

Whether you’re a freelance or professional photographer (or videographer), doing things right will help avoid legal issues and protect you and your business from lawsuits.

Legal issues covered in this guide

Click on any of the questions below to jump to that section of this legal guide.

If after reading this guide you still have a question, get in touch as we’d love to keep adding your questions to this comprehensive guide.

Photography Dos and Don’ts

Can I photograph someone without their permission?

Yes, as long as it doesn’t violate their privacy. There is no legal requirement that you have to get a person’s permission to take their photograph. However, if that person has ‘a reasonable expectation of privacy’, then you cannot take the photo of them.

For example, you can photograph someone out in public, say in the street or a public park, but you cannot photograph them in their house or garden. And no selfie sticks under their skirt – come on, that’s not photography!

Can I photograph children in public?

Yes, there is no law restricting photography of children in public places. However, the images cannot be indecent and the photographer cannot be creating a ‘public nuisance’. In addition, the photographs cannot be for commercial use.

In recent years, photographing children in public has been a hot topic in Australia – particularly at the beach or swimming pool. So be mindful that although it is not illegal, many parents will disapprove.

Can I photograph a celebrity or well known person?

image of can I photograph a celebrity or well known person

Be very careful when selling or using commercially any photographs of celebrities, public figures, politicians or well known persons. They need to control their public image and will not want it associated with anything they haven’t approved or consented to, particularly if it is for financial or commercial gain.

Always ask them to sign a Release Form, also known as a Photo Consent Form, if you intend to sell the image or use it commercially.

Can I take a photograph while on private property?

No, you need to get the property owner’s permission to photograph – or you’ll be trespassing. If you’re photographing a statue, painting or other object that belongs to someone and is displayed on private property, in a home or museum, you’ll still need permission if you plan to use it commercially.

Can I photograph a trademark or copyrighted work?

Yes, but only for private use or what is called ‘fair use’. ‘Fair use’ includes using an image of the trademark or copyrighted work in a review or to advertise the sale of the item. If the trademark is displayed permanently in public, that’s OK too.

But if you are trying to profit from your image of the trademark or copyrighted work or if your image will confuse the public or weaken the trademark or copyright in some way, then that is not allowed.

If your photograph isn’t for private use or doesn’t fall within ‘fair use’ then you’ll need the trademark or copyright owner’s permission. And tagging or giving them credit isn’t enough – you’ll need their written permission.

What can’t I photograph?

In general, if there is a security issue you will be prevented from taking photographs. For example, photography is not allowed on military bases, nuclear facilities, some political buildings, etc. Photographs in museums and galleries are also discouraged or often banned. But this is to encourage you to buy postcards, posters and guide books from their shops that carry the licensed images.

Some overseas countries have very restrictive regulations about taking photographs, including airports, embassies, soldiers/policemen, government buildings etc. So check before you travel.

What if I provide drone photography services?

Individual consent is required for aerial drone photography. If you are providing any drone or similar photography services, any operation of any remote device within 15 to 30 m of a person requires the consent of EACH individual. It cannot be group consent on behalf of the individuals, it must be individual consent from each individual.

The Civil Aviation Safety Regulation 1998 Part 101 (CASA Rule) for remote operation devices (‘ROD’) also recommends that the operator provide a written brief of any additional risks that may be possible to a person if something goes wrong.

Yes, in most cases you own the copyright and the rights to your photographs and any derivative images. However, there are 3 cases when you may not:

  • You are an employee of a business: In this case it is likely that your employer has included in your employment contract ownership of any photographs, images and videos you take during work hours.
  • You are hired as a contractor: In a work-for-hire situation, you can agree copyright ownership rights in advance. For example, full ownership rights to the person hiring you; license to reprint your photos and videos; individual sale of photos, etc.
  • You license or sell your rights to your client: For example, you are commissioned by a client to take photographs at a wedding. You can sell them the full rights to the photographs so they are free to make as many copies as they like; or you can sell them individual photos; or you can sell them a limited license to only make a certain number of copies.

How do I protect images on my website?

Preventing digital images posted on your website from being copied or used without your permission is almost impossible. However, these 6 suggestions can help:

  • Watermark your images with a copyright notice
  • Add your contact details and copyright notice to the image metadata
  • Disable right click saving of images on your website
  • Use flash to display images
  • Display images behind a transparent foreground image
  • Break the image into smaller image tiles and display as a continuous image

Whichever method you choose to use, you should always include a statement on your website specifying what your image sharing and re-use policy is. For example:

  • Re-use with attribution only
  • Re-use with attribution and link back to your website
  • Re-use only with your written permission, or
  • Any re-use will be considered copyright infringement

How do I protect my images on social media?

Protecting images used on social media channels is even harder, since social media content is designed to be shared. Technical options for preventing sharing do not normally work. At least with your own website you have some control over this. In some cases, ownership of content posted on social media channels actually belongs to the social media channel itself!

If you are uncomfortable having your images shared, we would recommend you don’t post on social media at all. The best that you can do is ask for attribution, but don’t expect it!

What should I do if my images are stolen or used without my permission?

If you find your images used without your permission you should issue a Copyright Infringement Notice, also called a DMCA Takedown Notice. This is a formal notice to the person who is breaching your copyright that they do not have permission to use your images and they must remove them immediately.

If they are selling your images or a derivative in any manner, you have the legal right to ask them for a share of revenue, depending on how and where the images are used. If they have cropped out your watermark from your images, you can ask for copyright infringement damages in addition to a share of their revenue!

How can I license my photographs or images?

There are a number of ways to sell and license your photographs and images. Here are the most common options or levels of license:

  • Full ownership rights: This allows your client to do as they please with your photographs. Including reproduce as often as they like; use commercially; use to advertise goods and services; alter and edit; and on-sell the photographs.
  • Restricted use license: This restricts your client’s use of the photographs in some way. For example, no reproductions are allowed; only a restricted number of reprints is allowed; or reprints and enlargements only to be purchased through you.
  • Specific use license: This specifies the permitted uses of the photographs. For example, for T-shirts, greeting cards, calendars, books or mouse pads; on billboards or business cards; for company advertising or branding; or personal use only is allowed.

Whatever you decide, make sure the terms of your licenses are very clear on your website and at time of sale. Your customers can agree to your terms by ticking a checkbox when they checkout online, or sign a Photo Licensing Agreement if they’re buying in-person at a gallery.

Photo Licensing Agreements can also be called Copyright Assignment (or Transfer) Forms when they involve selling full ownership rights.

image of legal forms for photographers

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Here are the legal forms that we recommend you use in your photography business:

  • Adult Model Release Form: This ensures you own the images outright and do not owe royalties to the subject of the photographs when you sell or use them. Also called a Photo Consent Form.
  • Child Model Release Form: This ensures you have the permission of the child’s parents/guardians to use the images commercially. Also called a Parental Consent Form.
  • Photo Licensing Agreement: This provides your client with an understanding of how they may use your photographs. You can give them private licensing rights to use only for their own use; commercial licensing rights with/without royalties paid to you to reproduce the photo on commercial goods; or other licensing restrictions can be provided for in this agreement.
  • Photography Contract: This clarifies the details of a photography shoot, including date, time, location, payment terms, cancellation policy, etc. Different types of photography need slightly different terms (e.g. portrait, wedding, event, baby, pet, real estate, school portrait, sports teams).
  • Copyright Infringement Notice: This is an official notice advising someone to remove your copyright owned photograph or derivative images. Also called a Copyright Infringement Cease & Desist Letter or DMCA Takedown Notice.

In addition, your website needs Privacy Policy, Disclaimer and Terms & Conditions notices. Your Disclaimer should include a Copyright notice, that protects your images from being copied or stolen. Your Terms & Conditions should mirror your Photography Contract terms.

None of the legal forms are complicated – and using them will show you’re a professional operator. Plus, as we said at the beginning of this guide, doing things right will help avoid legal issues and protect you and your business from lawsuits.

Should I use a Photography Contract with my clients?

Yes, you should always have a written Photography Contract with your clients. This agreement lays out the terms under which you do business. It should include: description of the photo shoot, location and time, the contract amount and payment terms, in the event of unusual weather or unforeseen events.

If you specialise in a particular type of photography, you should consider having a Photography Contract that is tailored to cover your specific needs. For example:

  • Wedding photography contract
  • Event photography contract
  • Portrait photography contract
  • Family photography contract
  • Newborn or baby photography contract
  • Pet photography contract
  • Sports teams or school photography contract
  • Product photography contract
  • Real estate or architectural photography contract
  • Corporate photography contract
  • Food photography contract
  • Boudoir photography contract, etc.

You should also post a standard version of your Photography Contract or template on your website, under your Terms & Conditions. Using a Photography Contract is professional, saves time and can reduce potential misunderstandings.

When should I use a Model or Child Release Form?

It is always a good idea to use a Model Release Form. If you do not and your photograph or any image derived from your photograph, becomes popular and generates income, then the person in the photograph may claim a share of the revenue. If your model signs a Release Form at the time of shooting, then they give up all rights to any future income from the images – irrespective of whether you paid them a modelling fee for the photo shoot or not.

If you take photographs of children for commercial use, or if they might end up in the public domain, you definitely should use a Child Model Release Form – also known as a Parental Consent Form. This is a legal form that the child’s parent or guardian signs on behalf of the child, that allows current and future use of the photographs and derivative images.

Structuring Your Photography Business

What business structure should I use to sell my photography services?

In Australia, there are generally 4 options for structuring your business:

  • Sole trader
  • Pty Ltd Company
  • Partnership, and
  • Trust

The best business structure for you will depend on your personal circumstances – and getting this decision right is very important. So talk to your accountant about the pros and cons of each option. Here’s a quick summary of each option.

Being a Sole Trader is the simplest and least expensive option. Designed for business owners who are the sole proprietors of their companies, this structure doesn’t give you much protection if things go wrong. Your personal assets are unprotected from any claims arising from your business.

Incorporation (i.e. forming a Proprietary Limited Company) effectively makes your business a separate legal entity from you. This structure involves quite a bit of paperwork and can be more expensive to maintain but it offers your personal assets protection from liability. Only your company assets are at risk in the event of any legal actions and company debts.

Creating a Partnership allows you to go into business with multiple people and share income. Partnerships are easier and less expensive than Companies to set up. However, all partners together are personally responsible for business debts and actions against the Partnership. And each partner is individually liable for debts incurred by the other partners. This means you have unlimited liability, unlike a Company structure.

A Trust isn’t an organisation at all, but instead a legal structure to hold assets. For example, you might set up a Trust to hold your business assets, then appoint a Trustee to manage them. Commonly, the Trustee is a Company and the Trust provides asset protection and limits liability from operating the business. Trusts are very flexible for tax purposes. However, a Trust is a complex legal structure and establishing a Trust costs significantly more than a Sole Trader or Partnership.

For more detailed information on each of these business structures, see our feature article: How to Choose the Right Business Structure in Australia.

Do I need a photography business license?

If you are conducting a normal photography business, you do not need any business licenses or permits. But you will need specific authorisation if you are taking photographs of children, models, celebrities, trademarks, on private property, etc.

Should I trademark my photography business name?

Just because you set up a Pty Ltd company or registered your business name with ASIC, this does not protect your brand name. Any business can use your brand name. The only way to protect your brand name and restrict its use, is to register it as a trademark with IP Australia.

This concept is one of the most misunderstood aspects of starting or running a business. And business owners frequently contact us because someone has started using their brand name – which they thought they owned!

Should I register my photography business for GST?

If your photography business has annual revenues of over $75,000 then you must register for GST. If you have annual revenues of less than $75,000 then talk to your accountant about your options.

Do I need professional photographers insurance?

As a professional photographer you might consider 3 different types of business insurance:

  • Photography equipment and studio insurance
  • Errors and omissions insurance
  • Public liability insurance

Photography equipment is expensive and it is only sensible to insure it for damage, theft, loss, travelling, fire, etc. Errors and omissions insurance covers you in case you miss or lose an important shot. For example, if you’re a wedding photographer and your images are accidentally erased, you’re likely to be sued by the married couple. You may also wish to consider public liability insurance if you take photographs where there is potential for accidents – for example, with stunt work, unusual/dangerous locations or working with drones.

As with all insurance policies, read the terms and conditions carefully – make sure the insurance you’re buying will cover your particular circumstances. Often you may not be buying policy cover for what you think you are – ask specific questions of your insurance broker.

We hope you found this legal guide for photographers and photography businesses helpful.

About Vanessa Emilio

Vanessa Emilio (BA Hons, LLB, ACIS, AGIA) is the Founder and CEO of Legal123.com.au and Practice Director of Legal123 Pty Ltd. Vanessa is a qualified Australian lawyer with more than 20 years experience in corporate, banking and trust law. Follow this link to read the full bio of Vanessa Emilio.