Photographs of identifiable persons are frequently published without their permission. Copyright law supports this practice because the photographer usually owns the copyright in the photograph and copyright includes a right of publication. Although many subjects of photographs argue that unauthorised publication of their image is an invasion of their privacy, privacy law rarely provides a remedy. The online environment has broadened the scale of this activity and has exacerbated the law’s deficiencies.
Focusing mainly on New Zealand laws, this article proposes that copyright law should be changed in order to provide a quasi-privacy protection for identifiable persons in photographs. Although the concept of joint ownership is alien to privacy, joint ownership of copyright is permitted and would provide the subject with some control over dissemination of their image. A prerequisite for this proposal to be effective is that all photographs of human subjects must qualify for copyright protection. Although there have been calls to deny copyright to ‘mere snaps,’ particularly those taken with digital cameras, in this article I draw on social science and visual arts literature to suggest that copyright protection can be justified for most photographs of human subjects.