Images and Privacy: The person’s identity is clear

Late last year several lucky RAV staff members were offered the opportunity to attend an Arts, Law and You workshop hosted by Arts West and Western Edge Youth Arts. Knowing this was an area in which I wanted to increase my knowledge I jumped at the chance, reprioritising my workload for the week to make time. You see, in my time administering the Regional Arts Fund grants I had become acutely conscious of the fact that not only did we ask applicants to give us a copyright license to use the material they provided in their acquittal, but we also asked them to provide photographic subject release forms.

It is not that I didn’t understand the importance of these things before, more that I didn’t really understand why. And I didn’t understand why both and what the difference was. There is very little I enjoy more than figuring out the answer to a question, and this workshop was the beginning of finding that answer.

I have to start by giving a huge shout out to Suzanne Derry who ran the Arts Law workshop. She did an extraordinary job of explaining some seriously complicated copyright laws and how they relate to our practice as artists and arts workers. I am not even going to begin to try and replicate what she taught is, but I thought I could share a few of the key learnings that I took away with me. For instance, in Australia copyright is an automatic right you get when you create something (an artwork, script, song etc…), and it lasts for the lifetime of the creator plus 70 years. You can give someone a license to use your work while still retaining copyright, or you can assign your copyright to someone which means you no longer own it. And if you post it on Facebook their Terms & Conditions say you are granting them a license to use it however and whenever they want, forever.

Gaining all of this information about copyright in the workshop only answered one of my questions, and in the months following the workshop I have spent my spare time chasing the reason why we ask Regional Arts Fund applicants for subject release forms from the people who appear in the images they provide in their acquittal forms. The reason is the Privacy Law (1988).  I am still not sure why the 1988 part is so important but that is how they write it every single time it is referred to. As with copyright this gets complicated fast, but as I wound my way back and forth between the information sheets on Australian Privacy Principles provided by the Office of the Australian Information Commissioner and the Act itself it started to make sense.

What it all boils down to is this: “Images of individuals in photographs or video (images) are treated as personal information under the Privacy Act 1988 (Privacy Act) where the person’s identity is clear or can reasonably be worked out from that image.”[1] Regional Arts Victoria is subject to the Privacy Act, so publishing a person’s image without their permission would be a breach of that Act, and we do not want to break the law. We do, however, want to publish the wonderful images you send us of your projects, so we always ask that the participants sign release forms.

For those you who want to know more (and trust me there is more) I suggest you start with some of the excellent free fact sheets that Arts Law provide in the Info Hub on their website.

Edwina Guinness is Regional Arts Victoria’s Partnerships Coordinator, administering the Australian Government’s Regional Arts Fund in Victoria. With over 10 years’ experience in the arts working predominantly in stage management across festivals, theatre, dance and opera, she has had the pleasure of working with companies including Brisbane Festival, Sydney Festival, Sydney Theatre Company, St Martins, Griffin, Belvoir, Bell Shakespeare, Malthouse, Melbourne Theatre Company, Victorian Opera, and 10 Days on the Island. Edwina is passionate about the importance of new work, and is thrilled to be working in a role that creates constructive change for artists who have something valuable to contribute to their communities.

The Australian Government’s Regional Arts Fund supports sustainable cultural development in regional and remote australia. The Fund meets the strategic priorities of supporting participation in and access to the arts and encouraging greater private sector support for the arts. The Australian Government’s Regional Arts Fund is provided through Regional Arts Australia.

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Edwina Guinness
Partnerships Coordinator
03 9644 1813

[1] Office of the Australian Information Commissioner website.