Pricing people out of the frame

Paulw

flyingsnail wrote: »

I have heard this before but I just dismissed it as urban myth. Could you please point out where it says this.

Actually, the law doesn't specify a specific time period for retention, in any cases. But, the industry norm seems to be 7 years.

DaireQuinlan wrote: »

Do the images themselves (as opposed to the client data) actually fall under the remit of the DPA though ? They're a 'creative work', that the photographer has control over. He certainly can't be forced to hand over a copy of the images on request for example, as the DPA would imply if they were accounted 'data'

I have queried the DPA about the issue before. The data (a digital image) is considered personal data, and the DPA does apply. So does a request for data under the DPA. However, in providing that data, you can provide the image in any size where it shows a true representation of the image. So, if you reduce the size and quality of the output to where it is still visible, but of poor quality that makes it too bad to print, you are in compliance with the DPA. You can also watermark the output.

But, I am very open to correction, and any change in opinion from the DPA. My last correspondance on the issue was from 2008, but the Act has not been changed since.

Judge

Despite my username, I am not a lawyer and this is not legal advice but I think people are getting a few things confused here.

As I understand it, the law in Ireland regarding Data Retention only applies to telecoms companies and requires data to be kept for between 1-2 years, depending on circumstances.

I think the 7-year thing comes not from the Data Protection Act but the law on the Statute of Limitations for commercial transactions. In the event of a dispute over a transaction going to court, you would be required to produce all records - which for a photographer might include the photographs they have taken - for the court to consider in its deliberations. If you were within the period allowed under the Statute and could not provide such records, the court could find in favour of the plaintiff regardless of whether they were in the right or not. The Statute of Limitations is 6 years but I believe it is considered good practice to keep such records for 7 years to cover any dispute over dates etc.

I can see how a photographer could be considered a Data Controller for the purposes of the Data Protection Act. My understanding of the Act is that you are expected to destroy any personal data once the specific reason you have collected it for no longer applies. I don't know what this time period would be for a photography business. Arguably a client could come back years (or decades) later looking for copies of pictures.

liamo

The retention period for data covered under the Data Protection Acts depends on the purpose for which the data was gathered or obtained. One of the key tenets of data protection is that data should be retained for no longer than is necessary for the purpose for which it was obtained.

The data protection acts are there to protect the data subject from misuse of his/her data by (for one thing) retention for too long a period so, if the images were deleted after having produced printed copies for the subject (or even immediately) the subject has no recourse under the data protection acts. I can't see how there would be a requirement to retain photographs for a period of 7 years.

Additionally, CCTV data is specifically mentioned on the ODPC website and it recommends retention (in general) for no longer than one month.

If the images are to treated as "personal data" and are subject to the DPA then the client can have a reasonable expectation that the photographer will have a policy on retention and safe keeping of the data. (because it's not all about retention). Additionally, is the photographer registered as a data controller with the ODPC?

In the case of photographs that were taken for the purpose of providing images to a client, my own opinion is that there should be a clearly articulated policy on the length of time that images will be retained by the photographer. If a case for the permanent retention of the images can justifiably be made then I don't see a problem with that. However, the subject can make a request for his/her data to be deleted. The photographer may decline (if justified) but must respond to the request within 40 days.

The main thing I think people should take from all of the above is that one can't just invoke the data protection acts to suit themselves (not that I'm saying anyone was). There are a lot of obligations under the data protection acts and a very large can of worms may be getting opened here.

Usual disclaimers about IANAL and all that applies.

DaireQuinlan

liamo wrote: »

However, the subject can make a request for his/her data to be deleted. The photographer may decline (if justified) but must respond to the request within 40 days.

I don't think this is actually true, my own (layman's) intrerpretation of it is that you have no grounds for requesting the deletion of correct and factual data* I.E. you cannot request deletion of baptismal records. I don't know if this would fall into the same category, but if anyone who appears in an image can request that the photographer delete that image it really IS tin-opener->can-of-worms time.

*insomuch as any photograph can be regarded as 'true' and 'correct' of course

JustAThought

I think if you " buy" the file print for e20 the photographed will most likely either do a copyright stamp diagonally across it so that's it's unusable, or give it to you in a low resolution so it's no use for printing out.

It sounds like you would like the pics but think the price is too high . You still have your baby ! You could try and replicate the pics yourself - with backgrounds /angles etc. at the end you migh realise why they charge!!!

TBH e65 isnt huge if the quality is good. & you like it. It sounds like you're at the start of the cute gravy train that will be departing at regular intervals for the next 18 or so years.

You could always have a word with the crèche about it & say that you feel it's putting unwarranted financial pressure on you - chances are ( at those prices) that it's their friend of that there's some kickback for the girls . Does it happen much in that crèche or was it a pre-planned special event that all parents were advance notified about?

Or did a random photographer just come in & start snapping your baby when you wern't there? In which case I would be asking questions for the future .

Otherwise its a buy or not buy situation & negotiate the digital copy - I think given that it is a child it would Be reasonable to advise the photographer that you do not want your picture of your baby to be given, published, sold to other people or used given the Jimmy Saville effect.

DaireQuinlan

JustAThought wrote: »

... given the Jimmy Saville effect.

That took 36 posts. We're getting there, folks, we're getting there :rolleyes:

liamo

DaireQuinlan wrote: »

I don't think this is actually true, my own (layman's) intrerpretation of it is that you have no grounds for requesting the deletion of correct and factual data* I.E. you cannot request deletion of baptismal records. I don't know if this would fall into the same category, but if anyone who appears in an image can request that the photographer delete that image it really IS tin-opener->can-of-worms time.

*insomuch as any photograph can be regarded as 'true' and 'correct' of course

Baptismal records and other personal data under the control of the state are a little different to images retained by a photographer (and I know that you're simply making a point by referring to baptismal data).

The data controller has a responsibility to make sure that the data is correct. The data subject has a right to have the data corrected if it is incorrect. However, that's only one part of the picture (pardon the pun).

Additionally (in my opinion), if the data subject had an expectation that his/her images would be deleted after a certain period of time I believe he/she would be justified in requesting their deletion. I don't think this has been tested and I've looked through the case studies and can't find anything like this. Photographs have come up a few times but not in this context. However, if the photographer has a clearly stated policy in place then this goes a long way towards setting everybody's expectations.

Personally I think it's reasonable for a photographer to retain the images for a reasonable or agreed period of time at which point they should be deleted. I also think it's reasonable for a photographer's customer to agree with the photographer that the images should only be retained for a specified period of time or perhaps not at all.

A data controller who holds information must:

• get and use the information fairly;
• keep it for only one or more clearly stated and lawful purposes;
• use and make known this information only in ways that are in keeping with these purposes;
• keep the information safe;
• make sure that the information is factually correct, complete and up-to-date;
• make sure that there is enough information – but not too much - and that it is relevant;
• keep the information for no longer than is needed for the reason stated; and
• give the data subject a copy of your personal information when requested.

There will probably at some point be a test case before the Data Protection Commissioner. Until then it might be prudent for photographers to at least think about their responsibilities under the data protection acts so that they are protected in the event of a complaint/query/case/etc.

Regards

Liam

magicbastarder

not that this would necessarily have an impact on the legal debate, but there is a very important functional difference between the data my telco would have on me and the data my wedding photographer would have on me.
the data collected by the telco is incidental to the service i am paying them to provide, whereas the data collected by the photographer *is* the service i am paying him/her to provide.
the data is retained by the telco for their benefit, and the photos are retained for my benefit.

DaireQuinlan

liamo wrote: »

There will probably at some point be a test case before the Data Protection Commissioner. Until then it might be prudent for photographers to at least think about their responsibilities under the data protection acts so that they are protected in the event of a complaint/query/case/etc.

Is it the case that this just hasn't really been tested in court yet ? It does seem quite ambiguous. I mean, one possibly far fetched example would be, photographer takes some portraits. Normal T&Cs apply, no model release etc etc, so can't be used commercially. However, one of the portraits becomes a popular fine art print for the photographer. Under normal usage, unless the client has signed something to the contrary, this is perfectly permissible usage.

The point I was actually making about baptismal data I think is relevent. It's not data held by the state, it's held by a private entity, the catholic church. You're possibly thinking of the register of births and deaths which is of course maintained by the state.

magicbastarder

would a newspaper be considered a data controller? how would the law apply to their stock of images?

frozenfrozen

DaireQuinlan wrote: »

If you think it's a rip off you should consider shooting your own kids. It'll probably cost a lot more in the short term at least though, and if it engenders a long and potentially ruinously expensive addiction to photography, in the long run too :-D

:O Don't listen OP! Your poor kids!

flyingsnail

magicbastarder wrote: »

would a newspaper be considered a data controller? how would the law apply to their stock of images?

I believe they would be exempt from the majority of the act under section 22 A of the Data Protection (Amendment) Act 2003.

21.—The following section is inserted into the Principal Act after section 22:


“22A.—(1) Personal data that are processed only for journalistic, artistic or literary purposes shall be exempt from compliance with any provision of this Act specified in subsection (2) of this section if—


(a) the processing is undertaken solely with a view to the publication of any journalistic, literary or artistic material,


(b) the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, such publication would be in the public interest, and


(c) the data controller reasonably believes that, in all the circumstances, compliance with that provision would be incompatible with journalistic, artistic or literary purposes.


(2) The provisions referred to in subsection (1) of this section are—


(a) section 2 (as amended by the Act of 2003), other than subsection (1)(d),


(b) sections 2A, 2B and 2D (which sections were inserted by the Act of 2003),


(c) section 3,


(d) sections 4 and 6 (which sections were amended by the Act of 2003), and


(e) sections 6A and 6B (which sections were inserted by the Act of 2003).


(3) In considering for the purposes of subsection (1)(b) of this section whether publication of the material concerned would be in the public interest, regard may be had to any code of practice approved under subsections (1) or (2) of section 13 (as amended by the Act of 2003) of this Act.


(4) In this section ‘publication’, in relation to journalistic, artistic or literary material, means the act of making the material available to the public or any section of the public in any form or by any means.”.

liamo

DaireQuinlan wrote: »

Is it the case that this just hasn't really been tested in court yet ? It does seem quite ambiguous.

Agreed. It is ambiguous. There may have been cases before the ODPC but I didn't find them in the case studies when I looked. Sometimes a test case is what is needed to clarify things for everyone.

The point I was actually making about baptismal data I think is relevent. It's not data held by the state, it's held by a private entity, the catholic church. You're possibly thinking of the register of births and deaths which is of course maintained by the state.

Yes, I was thinking that. Thank you for the correction. It's an interesting point - a baptised person is a member of that church and the baptismal cert is a record of their membership. If the person leaves that church can they request the deletion of their baptismal cert? Completely off-topic and not for discussion here. But interesting nonetheless.

Regards

Liam

magicbastarder

liamo wrote: »

Yes, I was thinking that. Thank you for the correction. It's an interesting point - a baptised person is a member of that church and the baptismal cert is a record of their membership. If the person leaves that church can they request the deletion of their baptismal cert? Completely off-topic and not for discussion here. But interesting nonetheless.

this is a bit of a hot topic. the church are refusing to delete baptismal records, as they claim they are historical records of an event, rather than a membership roll. despite being a raving heathen, i don't have an issue with this stance.

RainyDay

hyperborean wrote: »

Thats not the point, when any professional photographer takes a family photo or wedding pictures for example, do they only provide the prints and refuse access to the digital copies without further payment?

magicbastarder wrote: »

generally speaking, a professional wedding photographer will not hand over the source files.

It seems that you're relying on having ignorant clients. After being burnt on one occasion, I've made sure that any time if I've hired a photographer for work, I get high-res images and unlimited rights to use. It's part of the contract. A few sniffy photographers declined to quote on this basis. Smart photographers where quite happy to quote a good rate, do the job and get paid.

Clients need to specify their needs up front. If the photographer won't provide digital, find a new photographer.

JayEnnis

RainyDay wrote: »

It seems that you're relying on having ignorant clients. After being burnt on one occasion, I've made sure that any time if I've hired a photographer for work, I get high-res images and unlimited rights to use. It's part of the contract. A few sniffy photographers declined to quote on this basis. Smart photographers where quite happy to quote a good rate, do the job and get paid.

Clients need to specify their needs up front. If the photographer won't provide digital, find a new photographer.

You're right in a way, if the price is right I seen no reason not to supply full res images. However I feel that the OP is expecting to pay a little for a lot, something which is quite prevalent these days with the advent of the amateur photographer cutting into the professional segment. Personally I give out watermarked 800px longest edge x 72dpi shot's to clients for use on social media but if I was in the business of providing prints there is no way I would hand over a full res file as ultimately you're severing your own source of income.

The fictitious claims about every photographer handing over the negatives and the snark remarks about the state of the photographic industry leads me to believe that the "professionals" the OP has dealt with in the past are actually amateurs masquerading as professionals and thus further reinforcing the idea that a photographers work is worth very little.