Help with legality.

Seems odd starting a thread asking for help on legality and then ignoring any help offered where you don't like it.

I have no idea on the legal position so wont offer an opinion, but as an accountant, I would suggest that if the advice given here is as dodgy as some of the tax advice I've seen in the Talk Business section in the past then be careful about relying on it. You seem to have made up your own mind, and if you are confident in it then fine, but then why ask for advice?
 
Virgin active club rules:

21. We reserve the right to use any individual or group photographs or movie shots of you for press or promotional purposes. However, where reasonably possible, we will ask you to sign a use of image rights form (a “Virgin Active photography reproduction authorisation form”) to consent to this usage.

They think it is wise to get permission first.

I must admit I'm looking forward to the thread that starts 'Help I'm being sued by a disgruntled gym goer' ;)

I'd also give a call to your professional insurer and see what they say to your plan of action. If they say it is ok and they'll cover you for anyone trying to sue then it must be acceptable. If on the other hand they insist on signed consent forms to cover you for any issues you have your answer, regardless of what it is strictly legal to do or not do.
 
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Thanks for everyone's input, I've got the answer I opened the thread for.

It's clear that people have different ways of doing things and although I think signed permission is OTT and over cautious, I can see why others might do it.

To those that disagree, that's your privilege but remember there isn't a right and a wrong way here, there's the way I'm going to do it and the way you would.
 
srichards said:
Virgin active club rules:

21. We reserve the right to use any individual or group photographs or movie shots of you for press or promotional purposes. However, where reasonably possible, we will ask you to sign a use of image rights form (a “Virgin Active photography reproduction authorisation form”) to consent to this usage.

They think it is wise to get permission first.

I must admit I'm looking forward to the thread that starts 'Help I'm being sued by a disgruntled gym goer' ;)

I'd also give a call to your professional insurer and see what they say to your plan of action. If they say it is ok and they'll cover you for anyone trying to sue then it must be acceptable. If on the other hand they insist on signed consent forms to cover you for any issues you have your answer, regardless of what it is strictly legal to do or not do.
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That's virgin's rules...they can sanction whatever rules they want as a private establishment (bar murdering members etc!).
 
Phil Young said:
That's virgin's rules...they can sanction whatever rules they want as a private establishment (bar murdering members etc!).
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I think Suz was suggesting that you (or the gym owners) ought to think why Virgin have this clause. And would maybe be wise to do so
 
Steve Smith said:
I was really thinking about laws relating to the OP's case of taking photographs of members of a gym with the owner's permission. Not some fanciful nonsense like taking a banknote in and photographing it. That is completely irrelevant to this case.

And the OP isn't planning on taking photographs in the changing rooms or showers so that too is irrelevant, as is the bit about photographing the posters.

Now. Any laws which might restrict what he is actually planning to do?..... No, I didn't think so!
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Yeah, now you make up rules like they have to be relevant.....

OK then, wards of court. Many people often say that children have no extra rights regarding photography than adults (except for the obscenity act). I'm going to guess that the majority of those people have never read the Children Act 1989 (a right riveting read - it's available in full here http://www.legislation.gov.uk/ukpga/1989/41/contents). To save you some time, there's a bit on PhotoRights about this exact point http://photorights.org/faq/can-i-take-photographs-of-children

There are a couple of issues, but this one is the most important

The Children Act is also the cause of problems at sports clubs and similar venues, as the supervising adult has a legal duty to safeguard these enhanced rights to privacy. And since part of that right is confidentiality about the child's status, usually they will not know themselves which children in their charge the Act applies to.
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I.e. in a sport club or similar venue ("gym" seems similar enough) there is a law saying that the "supervising adult" has to protect the enhanced rights of children who have them without knowing which children have them. There's plenty in there to be outraged and start quoting Kafka about but I believe that's a relevant law.

What do I win?
 
JonathanRyan said:
Yeah, now you make up rules like they have to be relevant.....

OK then, wards of court. Many people often say that children have no extra rights regarding photography than adults (except for the obscenity act). I'm going to guess that the majority of those people have never read the Children Act 1989 (a right riveting read - it's available in full here http://www.legislation.gov.uk/ukpga/1989/41/contents). To save you some time, there's a bit on PhotoRights about this exact point http://photorights.org/faq/can-i-take-photographs-of-children

There are a couple of issues, but this one is the most important



I.e. in a sport club or similar venue ("gym" seems similar enough) there is a law saying that the "supervising adult" has to protect the enhanced rights of children who have them without knowing which children have them. There's plenty in there to be outraged and start quoting Kafka about but I believe that's a relevant law.

What do I win?
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Your prize

:jaffa: ;)
 
The problem is if you stuck to every guideline & moral judgement people make about photography,theses days you end up shooting nothing :(
 
It sounds to me like you are looking only for the answer you want... There is no simple answer to the question.
Simply being on private property does not infer an expectation of privacy. There are many places that are private property where there is no expectation of privacy...i.e. shopping malls, sports stadiums, even your yard. But there are public spaces where that expectation may be reasonable...i.e. a bathroom. The only one who can answer the question is a judge during a trial.

If this is a gym w/ restricted access (i.e. key/card entry) and no open frontage (i.e. wall of glass open to the public view) then it is conceivable that the ruling would be there is a "reasonable expectation of privacy."
Regardless of where a photograph is taken an individual has certain rights of privacy which must be protected. I'm not certain of the specific terminology in the UK law but it includes things like misrepresentation/embarrassing private facts/etc. And in commercial usage I *think* there is a consideration as to whether the individual can be interpreted to be advocating the product or service (simply using the service would not necessarily imply advocating use of the service, but it could).
Simply putting the images on the website does not make it commercial usage, but it does constitute "publication of information." And the UK has all sorts of privacy laws regarding personal information (i.e publicizing religious/sexual affiliations etc etc) that I'm not particularly knowledgable about.

And then there is the other side of the discussion in that the UK human rights act does not actually apply to individuals, only "public bodies." You could walk into your neighbor's house and take their picture and they could not sue you for invasion of privacy... They could sue you for trespass and then invoke section 8 violations in their claims under the suit. In your situation the suit could be brought as a "breach of confidence" *if* the ruling is that there was a reasonable expectation of privacy.

I do believe posting prominent notices would negate the potential for an expectation of privacy decision, but it would not necessarily negate all other potential concerns (i.e. commercial use).

Any and all of these concerns/ personal rights can be waived by a signed waiver...that's all a "model release" is (although many include usage rights agreements etc within a single document).'

To answer the original question... I think that if the notices are posted (prominently) and the images are simply used on the website to show the facilities in use, then you (and the gym) are probably in the clear legally. Getting to the point where a judge confirms that could be expensive.
 
inkiboo said:
To your original question, it's legal to take photos pretty much anywhere but there are some exception. However it is certainly not legal to publish any type of photo. If your contact at the gym has cleared it then great but I can say if I found a photo of me in my gym's marketing material then I would be leaving that gym ASAP.
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??? - like you said its amazing that photographers don't understand this stuff and that couldn't be less accurate - a)whether you can take photos on private premises depends on having the owners consent, so it is not true that "you can take pictures more or less anywhere" b) it is perfectly legal to publish the pictures if taken in public, or on private premises with the owners consent... however if the end user uses them in a derogatory way , or a way that implies endorsement, without consent of the subject they 'may' choose to sue - they equally may chose not do so. This will be a matter of civil dispute not of it being against the law per se.

therefore if you are going to use these pictures to promote the gym , it would be wise to gain a model release from anyone who is identifiable in the pictures in order to cover the end users arse against the potential for lawsuit - however not doing is not illegal , it just isn't very sensible.
 
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I haven't read the whole thread so forgive me, but could you just not call for volunteers to be included in the shots?
I'm sure the gym bunnies would be more than eager to participate.

Oh, and as a lawyer, I can tell you that using them as an integral part of a gym website IS a promotional purpose.
 
inkiboo said:
Sorry but it is true. What you can't do is publish more or less anything.
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No it really isn't - if you take photos on private premises without permission you are trespassing and open to lawsuit (regardless of whether you publish) , if you refuse to stop when asked/told you can also wind up guilty of aggravated trespass which is a criminal offence, plus there are the various harassment laws (none of which is relevant to phils situation as he would have the premises owners permission - but claiming you can shoot more or less anywhere is abject rubbish. You can shoot more or less anywhere on public land - not on private premises.
 
viv1969 said:
Oh, and as a lawyer, I can tell you that using them as an integral part of a gym website IS a promotional purpose.
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Define integral...
IMO, if the images were used in the website design (banners, headers, BG, etc) then that would be integral and "marketing/promotional." But it would not necessarily convey "advocacy." That's getting pretty gray though and I'm not certain how relevant that factor is in the UK law.
Also IMO, if they are just images among many other images used in the context of describing the facilities/services then it really becomes more "editorial" in use.

And again, no matter what anyone says or you read on the web...the only "answer" is the one the ruling judge hands down.
 
The law does not distinguish between editorial and commercial use per se, only in as much as the context of use is relevant and would be taken into account.
 
sk66 said:
Define integral...
IMO, if the images were used in the website design (banners, headers, BG, etc) then that would be integral and "marketing/promotional." But it would not necessarily convey "advocacy." That's getting pretty gray though and I'm not certain how relevant that factor is in the UK law.
Also IMO, if they are just images among many other images used in the context of describing the facilities/services then it really becomes more "editorial" in use.

And again, no matter what anyone says or you read on the web...the only "answer" is the one the ruling judge hands down.
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If said images were used as part of a "gallery" section of a commercial website, then that is not commercial.
If, however the images are used as a permanent part of the website (ie integral) then it is.
Quite simple.
 
inkiboo said:
That is pure nonsense in most circumstances.
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No - it really isn't. Think about what you're saying. By your reasoning I can come into your garden and take pictures through your lounge window and it would be perfectly legal unless I publish them.

That is out and out rubbish - you cannot take pictures (without risk of lawsuit) on private land or private premises without the permission of the landowner - this is how shops, pubs, sporting venues, museums and who knows what else can have "no photography" policies , or put restrictions on photography like no tripods, no flash, or no lenses longer than 30cm.
 
big soft moose said:
By your reasoning I can come into your garden and take pictures through your lounge window and it would be perfectly legal unless I publish them.
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But you can stand on the other side of my wall on the pavement and point your camera towards my window.


Steve.
 
Steve Smith said:
But you can stand on the other side of my wall on the pavement and point your camera towards my window.


Steve.
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Indeed , so long as the pavement is public land (ie not a private road) , and so long as I didn't make a habit of it, or do anything else that would be deemed harassment or stalking (such as taking nudie pictures of your wife through your bedroom window)
 
I think i'll pass - on the IoW i'd be worried about being captured by the indigenous population... like 'deliverance' :lol:
 
yeah I was sure I could hear banjos from the ferry :lol:
 
viv1969 said:
If said images were used as part of a "gallery" section of a commercial website, then that is not commercial.
If, however the images are used as a permanent part of the website (ie integral) then it is.
Quite simple.
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However, I suggest it would be difficult to sustain that argument in the course of a copyright dispute.

If they were using your photo in their gallery on their commercial web site (say, a gallery images of the locality on a hotel's web site) would you still consider it a non-commercial use?
 
Phil Young said:
.

it's still legal, you Just might be challenged by the person who's privacy was breached.
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Well actually no in that particular example - that kind of behaviour would almost certainly break the harassment laws - however my core point was not about whether it is legal per se , but that you can't take pictures practically anywhere without risk of getting sued - on private premises you need permission from the owner to be on safe ground.

( I realise this is irrelevant to your OP as you would have permission of the Gym owner - in your case it would be more about whether the people pictured were annoyed that they seem to be implicitly endorsing the gym )
 
big soft moose said:
No - it really isn't. Think about what you're saying. By your reasoning I can come into your garden and take pictures through your lounge window and it would be perfectly legal unless I publish them.

That is out and out rubbish - you cannot take pictures (without risk of lawsuit) on private land or private premises without the permission of the landowner - this is how shops, pubs, sporting venues, museums and who knows what else can have "no photography" policies , or put restrictions on photography like no tripods, no flash, or no lenses longer than 30cm.
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Please point me in the direction of all these lawsuits against people taking photos where it has NOT been expressly stated they can not take photos.

Laws for the most part say what cannot be done rather than the other way round.

You said that taking photos on private land would be trespass. Again, that is really not at all accurate.
 
Interesting reading. I think people are underestimating the amount of people that will turn down this opertunity. If I'm at the gym, sweaty and red faced I don't want my image used.

That's all ok if it's 3 guys opting out but on the day if you have 50 people opting out and 50 inn how can this give you good results with a mix of inn and out people?

They pay good money to be there, they will certainly not be moving out of the way so you can get your shot.

I would also do a setup shoot but that's just opinion.

As far as your concern is, it's interesting to read legally it's all above board. Morally some are disagreeing. Often the fine line photographers walk.

Thanks for the thread interesting food for thought.
 
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inkiboo said:
You said that taking photos on private land would be trespass. Again, that is really not at all accurate.
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It's only trespass once you have been told to stop and refuse and/or have been asked to leave and refuse.


Steve.
 
I seem to remember a case where a diner sued a restaurant who had given permission for photos to be taken. I believe the judge ruled that you wouldn't normally expect to be photographed in that situation. I would imagine that could equally apply to a gym. Have searched extensively on Google but cannot find it.

Steve
 
Steve Smith said:
It's only trespass once you have been told to stop and refuse and/or have been asked to leave and refuse.


Steve.
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I think that simply entering someones property/land without permission is trespass. Of course trespass itself is not a criminal offence.

Steve
 
jakeblu said:
I seem to remember a case where a diner sued a restaurant who had given permission for photos to be taken. I believe the judge ruled that you wouldn't normally expect to be photographed in that situation. I would imagine that could equally apply to a gym. Have searched extensively on Google but cannot find it.
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There was a case ruled on by the European Court of Human Rights in 2009, which found that the mere act of taking a photograph (without publication) could be a breach of the right to privacy and dignity in certain circumstances.

I'll quote from a useful summary of the facts on Secret Scotland, as it presents them well from a photographer's viewpoint.

http://secretscotland.wordpress.com/tag/echr/

Secret Scotland said:
This case ... seems to have come about after a bit of legal meandering when a Greek court declined to hear a complaint raised by a couple in respect of pictures taken of their new-born baby. Having failed to get a local hearing, they eventually appealed to the ECHR, seeking judgement on both the refusal fo the local court to hear their case, and the control of images of their child, which was their responsibility as their child was a minor.

The parent began their action when their baby’s photograph was taken as a commercial service operated by the hospital. They objected and asked for the negatives to be given to them. The hospital refused, and the Greek courts would not hear the case.

Other photography related privacy cases have concerned the publication of images, but this particular ruling is a new development that deals with the taking of a photograph that was never published.

In summary, the (ECHR) has expanded the reach of privacy rights by ruling that a photographer breached someone’s privacy just by taking a photograph, even though that photograph was never published. The ECHR said that the taking of the photograph breached the child’s right to a private life as guaranteed by Article 8 of the European Convention on Human Rights, and that the Greek courts had failed to uphold that right.

The ECHR does not directly change UK law but courts will take its rulings into account if asked to judge similar cases. Public bodies must also take account of its rulings when formulating their policies and practices.
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Slightly more legalese summary here: http://www.5rb.com/case/Reklos-and-Davourlis-v-Greece
 
I have enjoyed the assumptions that have been made over what shots I'd be getting...here's a few shots that I got. Nothing major - just a few documentary type shots for the website to illustrate what the club is like.

There was another staged shoot 5 weeks ago to get the model'ed shots :)

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Whilst i am a bit ambiguous about the value of the thread the same cannot be said for the photos, some good shots there Phil

Steve
 
Phil Young said:
I have enjoyed the assumptions that have been made over what shots I'd be getting...here's a few shots that I got. Nothing major - just a few documentary type shots for the website to illustrate what the club is like.

There was another staged shoot 5 weeks ago to get the model'ed shots :)
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So presumably you already knew the answer to your original question if there had already been a staged shoot and you intended to take photos where individual identity was obscured?
 
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