Using Photographic Images for Promotional Material

Using photographed images of New Zealand or people participating in tourism activities can be an effective way for tourism agents and operators to market their goods and services.  Provided they have the consent of the original photographer or the owner of the image, there is usually no problem.  Problems can and do arise if the image is used without the permission of the photographer or owner.

Photographs are copyright protected as artistic works by the Copyright Act 1994 until the date the photographer dies plus 50 years.  If a person comes forward after publication of your promotional material claiming an infringement of copyright, the claimant will need to prove that they are in fact the owner of copyright in the photograph.  In most cases they would do this by producing the negative but this would be more difficult if they could no longer do this and may require affidavit evidence from the people present at the time the photograph was taken.  In copyright infringement actions, a claimant may either claim damages or an account of profits - the claimant must select which one.

However, this is not the end of the issue.  There are also the persons appearing in the photograph to be considered.  If the photograph was taken for private domestic purposes the Copyright Act 1994 gives the persons appearing in the photograph the right to control its publication and distribution even though copyright in the photograph is owned by another person.  This continues for the life of the copyright in the photograph.

For other photographs the rights of those appearing in the photographs are more limited, although the Privacy Act 1993 has recently made this a more serious issue.  By publishing a photograph of someone you can be publishing private information about that person in breach of the Privacy Act.  There are no obvious defences if such a claim is made, although we note that the Privacy Act is only intended to deal with significant harm.  Accordingly, if that person is in a public place or the photograph in no way reflects adversely on them they are unlikely to be able to take any useful steps against you.

You need to keep these issues in mind when developing your websites, brochures and other marketing tools.  What may seem like a harmless exercise in promoting the benefits of your services or your local area may in fact infringe the rights of others unless appropriate consents are obtained.

For more information, please contact:

John Ferner
Partner
t: +64 9 979 2153
e: John Ferner

Last updated: 23 May 2006

This article is intended to be brief in nature and should be used for information only. It should not be relied on as legal advice.