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I captured a photograph in the street.

The photograph includes people who I don't know.

There is nothing in the photograph that I believe can offend anybody (e.g. no nude or illegal act).

I just like this photograph.

Is it legal to publish the photograph for commercial use without permissions from the subjects appear in the photograph?

The photo was taken in Australia. I want to publish it as a demo-photo as part of a photo-editing App (distributed internationally).

Edit: Please note that the question marked as possible duplicate does not relate specifically about someone captured in Australia, and does not specific to my commercial usage context.

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  • 1
    For what purposes are you publishing this photograph?
    – Viktor
    Commented Sep 10, 2015 at 14:21
  • 5
    Possible duplicate of law.stackexchange.com/q/247/10
    – feetwet ♦
    Commented Sep 10, 2015 at 14:40
  • My purpose is for using as a demo photograph in a photo-editing app.
    – Ben-Uri
    Commented Sep 10, 2015 at 16:46
  • Perhaps @DaleM could expound on the legality of commercial use in Australia? The other answer references 4020.net as a resource, but the answer is not immediately obvious there.
    – feetwet ♦
    Commented Sep 11, 2015 at 12:09

1 Answer 1

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OK, the prohibition on commercial use stems from either:

  1. The tort of passing off; this is a private civil matter between the model and the publisher, or
  2. Breach of s18 of the Australian Consumer Law which involve misleading or deceptive conduct; this is a public civil matter with strict liability (i.e. intention or negligence is irrelevant) between the ACCC and the publisher with fines of up to $1,100,000 for a body corporate and $220,000 for an individual.

In both cases the cause of action arises from the possible presumption by a person who views the photograph that the model in it is endorsing the goods or services that you are selling. The standard is: Would a reasonable person, viewing the photograph in context, come to the conclusion that the model is endorsing the goods or services (either because they really like it or they were paid to show they really liked it).

Context is everything here.

Some examples:

  • If you a photo studio selling the actual photograph then there is no endorsement. If you are using the photograph to promote the studio there is.
  • If you are showing a crowd scene (e.g. at a football match) there is no endorsement.
  • If you are showing a building and the people are incidental there is no endorsement.
  • If you are showing individuals or small groups in a way that promotes your goods or services there is endorsement.

So, look at the photograph and the purpose you are using it for: could a reasonable person draw the conclusion that the people in it are endorsing your application?

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