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When you hire a professional photographer, there tends to be some confusion about ownership over the photos. Logically, most people would think that the photos would belong to the client, who paid for the service.
However, there is a fine line between the law and ethics when it comes to photo ownership and what the photos are used for.
For example, a gold investment agent shared on Threads about how she confronted a photographer she hired after he uploaded a photo of her without her consent, even after she politely asked him not to.
She also claimed that the photographer accused her of mistreating him and blocked her.
“I feel that it was I who was mistreated. I’ve paid RM1,500 but the results were not up to the standards that were promised to me as the client,” she said in her post.
In an earlier post, she mentioned that she has worked with other photographers in the past, and that many of them sought her consent first before sharing the photos they took as part of their portfolio.
Although the photographer did take the photos offline as she had asked, he advised her to draft an agreement so as to not make other photographers feel mistreated in the future.
View on Threads
According to law, photographers own the pictures they take by default
The gold agent said in one of her posts on the matter that she believes photos she paid for are fully owned by her as a client.
But how much of this is true?
According to Section 26 of the Copyright Act 1987, First Ownership of Copyright states that copyright “vests initially in the author” which in this case is the photographer – unless they assign it otherwise.
What this means in practice is the photographer owns all copyrights of the images they take, even if the photos are commissioned or paid for unless there is a contract that explicitly states a transfer of rights.
There are a few exceptions though, according to Section 26(2):
- When a photographer is an employee of a company, the copyright belongs to the employer.
- Relating to commissioned works, copyright can be transferred to the client if it was agreed in a contract.
Photographers need to consider ethical practices too, or risk facing legal consequences
Now that we got the ownership parts out of the way, there is also the question of ethics on the photographer’s side.
While it’s true that the photos are owned by the photographer unless stated otherwise in a mutually agreed contract, common decency also needs to be considered when a photo involves the privacy of an individual.
If not careful, career photographers could find themselves embroiled in a legal battle should the prosecutor decide to invoke the Personal Data Protection Act 2010 (PDPA), Section 509 of the Penal Code, or the Communications & Multimedia Act.
Personal Data Protection Act 2010 (PDPA)
The PDPA applies only to personal data (including pictures) processed in commercial contexts such as business, services, or marketing. It gives individuals the rights to withdraw consent and request deletion of their image, and organisations must comply or face penalties up to RM100,00 and imprisonment.
So for example, your company uses a photo of someone for your business without their consent, they can legally demand its deletion under PDPA.
However, photos that are taken informally (without any commercial links) are not covered under the PDPA.
Privacy, harassment, and other laws
Photographers must also be careful about sharing images that may intrude another person’s modesty (e.g. intimate or embarrasing photos). Section 509 of the Penal Code criminalises exposure of one’s privacy without consent and is punishable by up to five years in prison or a fine.
Meanwhile, Section 233 of the Communications and Multimedia Act prohibits online content that is offensive, abusive, harassing, or menacing. Posting someone’s image to annoy, harass, or shame them might fall under this, even in group chats.
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