Every state and every country has their own laws, so what applies in one does not necessarily apply in another. The quickest and easiest way to know all these laws is to make enquiries with staff at locations of concern. In westernised societies there is considerable freedom, but it is not a free-for-all. With photography and video production specifically in mind, there is differences between amateur and professional/commercial applications or intentions. This can get a little muddy at the crossover, where a photographer is not running a professional business, but may offer some of their work for sale through galleries or stock image libraries to supplement their overall income from other vocational sources.
This needs to be considered where different rules apply between amateurs and professionals. On that matter, how do you define a professional? Many people judge on the quality of the work…”that’s professional work”! However what they are saying is not that the work was done by a professional, but that the quality is of a professional standard! We all make our own judgement on what a professional standard is.
Photography is not a profession, it is a craft, but the application of the craft can be a professional occupation if you derive income from it. Professional pertains to endeavouring to earn income on a regular basis, but people expect a certain level of expertise, manner of conduct and association with other professional enterprises. However insurance companies and authorities needing to separate amateurs from professionals will go with only the first part——the intention to generate income from the craft! In the case of insurance companies, many make the distinction with the first evidence of sales. So you can call yourself a professional if your intention is to earn income from your work and you have already done so, but without the rest of what people expect of a professional, you will be an unrecognised professional operator——not good for marketing, but a professional nonetheless and something all professionals must endure while learning their profession or craft and in establishing themselves.
In the context of this article, professional is determined by the intention of the product use, rather than the status of the photographer. If you intend to trade the product and have a record of doing so previously, then your application is professional. You could substitute the word professional with commercial here, but then that leads to ambiguity over commercial!
Commercial use here is when a picture adds value to a product it becomes part thereof, which is then used in trading directly, or to aid trading. For instance, a magazine is traded for money with pictures within adding to the value of that magazine. It is a commercial proposition——produced for profit. Same for any product utilising those pictures including the product’s packaging. An example of aids to trading would be an advertisement featuring a picture. The picture adds to the value of the advertisement and even if that advertisement is not for agency profit, it in turn attempts to capture the attention of the marketplace to aid trading and thus the businesses bottom-line. One adds value to the product for trading, the other value to the business established to do the trading.
The main reasons behind the differentiation between professional and amateur restrictions on taking photographs is one of security versus freedom. As a free society people demand the right to these basic freedoms, but proportional to security risks imposed by them. Professional use infers that not only will many people see the end product, but it may be traded to unknown users of unknown intentions. It has become clear that pictures can aid in planing vandalism and acts of terrorism.
Here is an extract from Australia’s Queensland Rail website
Commonwealth departments have advised Queensland Rail that terrorist attack planners often engage in pre-attack reconnaissance. This may include taking pictures of likely targets and consequently you should be aware of the perception you may create. For this reason it is important that you comply with the above request to make yourself known to Queensland Rail staff.
Additionally, it is likely that terrorist or criminal elements use the internet as a tool to receive information and photographs of sites to conduct their planning. This may include criminal activity such as vandalism or graffiti. Investigations of such incidents will include internet sites and persons who have made such information available.
It is therefore advised that people taking photography or filming Queensland Rail assets in accordance with these guidelines do not make this information available to the public or on the internet. This will ensure that any images taken are not misused and rail enthusiasts can continue to enjoy their hobby.
If your intention is to exhibit, sell or licence your work, then you are considered professional and should seek permission from the Manager, Corporate Affairs at Queensland Rail: Queensland Rail website
Here is a Queensland rail publication for amateurs photographers, who need only get permission from local station staff: Queensland Rail enthusiast/amateur photography access guidelines
Although this information applies specifically to Queensland Rail, it is most likely that all other state passenger rail authorities in Australia and indeed authorities in many other countries have similar information. One way to find out is to run an internet search or Goggle acts of law covering photography at specific locations.
Researched and written by Gavin Lardner © 2011