New Apostolic Church
Photography in divine service
◼ Rights ↑
The Chinese philosopher Lao Tzu (sixth century bc) was said to have opined, “Better than one who knows what is right is one who loves what is right. And better than one who loves what is right is one who is passionate about what is right.”
Taking the camera out of its original packaging is legally unobjectionable—but turning it on and pointing it at the neighbour’s terrace can already cause problems before you even snap a shot. Following is a chapter with some seemingly boring content, but its paragraphs are certainly not to be taken lightly.
What is legal and what is not? What laws protect me and others when I take photos? What governs these matters are the legal protocols of the respective countries in which the photographer operates.
These pages provide information about the prevailing regulation in Europe. What exemptions does the German Law Regulating Art and Copyright Issues (the Kunsturhebergesetz, also known as the KUG) provide? What must I—and others—consider if my photos are to be published?
◼ The Right to One’s Own Image ↑
“Images may only be distributed or publicly displayed with the consent of the person depicted. In cases of doubt, consent is considered granted if the person depicted is remunerated for being pictured. For a period of ten years following the death of the person depicted, the consent of the relatives of the person depicted is still required,” declares Article 22 of the KUG).
The Right to One’s Own Image is part of general Personality Law, which, in a number of judicial interpretations is very closely linked to Article 1 of German Basic Law (“Dignity of Person”)—and which can be very quickly violated in our time of social networks, stock photography, as well as countless websites and church congregations.
A pardon for violations is rare. In particular, law firms specialising in warnings of this nature are very keen to seize on any missteps, and charge steep legal fees for cease-and-desist orders. It is thus worthwhile—whether for the benefit of one’s own wallet or for simple reasons of charity—to observe the clearly described laws with all due diligence.
The Right to One’s Own Image specifies that every person is entitled to decide for him/ herself whether he/she wants to be photographed, and in what context the resulting images will be published. The consent of the person depicted must be obtained beforehand. As is well known, written consent is the surest form of consent. The nature and extent of image usage, as well as any remuneration claims and possible restrictions, can be described and signed in a document known as a model release.
When a minor is depicted, the consent of both parents or guardians is generally required. The only exception is to appeal to the “attained cognitive faculty” of persons aged between 12 and 18, which is highly subject to interpretation.
Incidentally, it is immaterial whether one or more persons can be recognised in the image. The moment even one person can be recognised by his/her external appearance, or as soon as any conclusions about his/her person can be drawn from the image, consent is required.
Nevertheless, Article 23 of the KUG describes four exceptions in which the consent of those depicted is not required:
- images taken from the domain of contemporary history. When individuals who can be considered persons of contemporary history are depicted, their images can be distributed and publicly displayed. This includes photos of congregational rectors, district leaders, and Apostles—however, the privacy of these persons must not be violated in the process. In other words, neither an image of the Apostle at home on his garden lounger, nor any images of his partner or children, all of which could be considered private, are permitted.
- images on which the persons depicted are only accessories next to a landscape or other venue. If the main subject is the church building, and a number of persons are visible in the foreground, the Right to One’s Own Image does not apply in general.
- images of assemblies, processions, and similar events in which the persons depicted participated. The conditions here specify that the event in question must be publicly accessible, that the organiser must consent to photography, that specific individuals must not be emphasised or portrayed as distinct from the masses, and that the event itself must be in the forefront of the photograph.
- images that are not made to order, provided that their distribution or exhibition serves a higher artistic interest.
Incidentally, these exceptions do not apply—or only apply to a limited extent—if images are to be used for promotional or other commercial purposes.
In the relevant case law, there is simply no such thing as a free ticket for photos depicting groups of 4, 7, 10, 12, 23, or no matter how many persons. This “group photo exemption” is nothing more than a stubbornly circulating fairy tale. If even one of these individuals can be recognised, things become and remain serious. In case of doubt, the photographer will have to prove that all the persons depicted have given their consent.
If a photographer violates the Right to One’s Own Image, he/she may be punished by fine or imprisonment. For example, photographers snapping unauthorised images of people in their home can be punished with up to a year’s imprisonment for invasion of privacy (Article 201a of the German Criminal Code).
A definitive, binding statement can only be made by a lawyer on the basis of a specific image. Thus the aforementioned remarks merely serve as examples.
◼ Copyright ↑
Foreign images are often used in the creation and maintenance of websites—but increasingly also in social networks. In order to use them, one must have the express permission of the author. According to German Copyright Law, works remain protected for a period of 50 to 70 years after the death of the author (Articles 64, 72 Copyright Act). Here a distinction is often made between simple photographs and sophisticated photographic works. The point of demarcation between the two is dependent on the individual case, and can usually only be determined in a court of law.
Photographers are authors (Articles 2, 7 Copyright Act). Only the photographers themselves can determine what is done with their works. Any unclear use is a copyright infringement (Articles 31 et seq., Copyright Act).
No image is to be published without giving credit to the author (unless the photographer expressly wishes or permits this). Of course no image may be published under another name. Copyright is always related to a person and cannot be transferred to another person or institution. A reference stating “Image: NAC [District Church name]” or “Image: Private” is thus incorrect (Articles 11 et seq., Copyright Act).
Only the use of an image can be transferred to another person or institution. Optimally, the details concerning this are governed by corresponding use and exploitation contracts that protect both parties (the photographer as well as the image user) and clearly define the personal, temporal, geographical, and material exploitation of the images in question (Articles 31 et seq., Copyright Act).
In continental Europe, the rights of an author are governed (with some national differences) by a copyright law that differs from the Copyright in effect in the USA and the United Kingdom, and even the latter diverges in many aspects from the prevailing copyright laws in Germany. In Germany, copyright laws also protect works identified by a trademark (™, ®, or ©). Incidentally, these protections also apply to this book.
Compliance with copyright law is elementary. A violation of copyright law can result in claims for damages or even criminal prosecution. By that point, at the latest, pictures definitely tend not to be any fun any more.
◼ Model release ↑
In order to ensure that the verbal, “Yes, of course I agree!” is still unreservedly valid next week, there are various written forms of consent at our disposal. Depending on the intended use, there are three different types of contracts that can help us along. Sample contracts can often be found on the Internet. The best legal solution is a contract drafted by a specialist lawyer for a specific application.
Model contract (model release)
- here the photographer and the model create a contract that describes the later use of the photos: Who can use the photos? The photographer, the model, both?
- whose name is to be credited at publication (the name of the photographer, the name of the model)?
- will there be any kind of remuneration?
- temporal use: unlimited, only for a limited time?
- geographical use: regional, national, global?
- media/material use: print, online, unlimited, limited?
TFP (Time for pictures)
- this is basically like a model contract
- it is a model contract without fees, for test or practice purposes (model is practising, photographer is practising ...)
- commercial use is out of the question (photos are used by both parties for their own promotional purposes)
Property release
- this is a kind of rental agreement that a photographer makes with the owner of a building/property (in order to enter the building/property at a predetermined time in order to take photos)
- when? For how long? How often?
- will there be any kind of remuneration?
- clarification of any possible liability risks that could result from entering the building/property
◼ Awarding usage rights ↑
Authorship of a photo cannot be transferred. The person who has created the photo is and remains its author. However, the author can award the usage rights to his photo to another party. Here too, a written statement of consent is helpful so that parties can fall back on clear principles in the unlikely event of a dispute. And here too, the best legal solution is a contract created by a specialist lawyer for a specific application.
In general—in addition to information on the names and addresses of the contract parties, remuneration, and the corresponding image file(s)—the following four domains of use should also be described in the contract:
Personal use
- simple right of use (i.e. photographer still maintains the right to award usage rights to other parties), or exclusive use by a specific contract partner?
- continued use of the photos for promotional purposes (photographer)?
Temporal use
- unlimited, or limited to a specific period of time?
Geographical use
- unlimited, or limited to a specific region or country?
Media/material use
- unlimited, or limited to private, promotional, or commercial use?
- unlimited, or limited to a particular medium: print (books, magazines, posters, flyers, etc.), or online (website, newsletter, ...)?