Q: Public people and their privacy

AmateurX

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When you shoot in public or at public events with both adults and children, any of them can be framed either intentionally or accidentally depended on the choice of angle or motive. But what about their privacy when you publish your work on a public website like e.g. Flickr? It's pretty logical that you can't ask for everyone’s permission, especially not with a wide angle lens :P, so are there any official or unofficial rules/ethics about this in the photography community? I guess parents are very sensible to this regarding their own children.

So are you careful about where you aim your lens towards? What kind of privacy policy do you have when shooting in public and crowded areas?
 
The law is pretty clear that you can not expect privacy for things done in public. Unfortunately emotions usually rule (ruin?) the day these days. I don't due much street/candid photography but wouldn't worry about it if I did. Shoot first, ask questions later.

I shot this at the mall and I don't know what I would have told them if they had caught me. :> ) Maybe offer them a print?



--
Greg
http://www.pbase.com/gmacklem
 
Actually the law varies from state to state and it's best to consult an attorney before using an image for commercial purposes without a model release. In NY state where I grew up, the law is very clear and you must have a model release. In Texas where I now live and work the law is much less "clear" but I always get a model release signed before publishing an image with a recognizable face.

There is a whole lot of unreliable "advice" about this topic on the internet. My recommendation to is consult an attorney and use a simple model release. I carry a pad of them in my walk-around bag whenever I'm shooting street scenes or travel photography.

--
Jeff Lynch
Serious Amateur Photography
http://jefflynchdev.wordpress.com
 
So you will understand my background and how it allows me to speak with some authority on this matter, I feel it important that the reader know that in addition to being a working pro for 40 years and having published thousands of photographs in that span of time, I also serve as the executive director of ASMP, American Society of Media Photographers for fifteen years. ASMP is the pre-eminent trade association of publication photographers is the USA. Part of my work was to make sure ASMP members had information like that which follow. Although I left ASMP to semi-retire in 2003, the basis of the following information has not changes since then.

The following information is based upon laws in the USA. It applies in all 50 States. In Canada, United Kingdom, and Australia the laws are similar, but this information should not generally be applied in those Countries without further research. In other countries the laws are different from more strict to almost non-existent. Like all legal matters, you never want to be the test case. It pays to do some additional homework about the matter rather than make assumptions. If you shoot professionally it pays to hire an attorney who is an expert on the subject, and most attorneys are not. In lieu of an attorney a pro ought to join ASMP, the trade association with an authoritative industry voice.

There are two issues in your question not one. They are the right to photograph and the right to us the photograph.

The right to photograph --- In a public place, like on the street or in a city or national park, you have the right to shoot anything you see without permission from anyone unless a permit is required to shoot as in the case of having a lot of gear (like lights and tripods0 on location. Permits usually apply only to commercial shoots, and I have never seen a case in which a amateur or pro was required to get a permit if only carrying cameras and lenses. On private property such as a performance center, sports stadium, or building the management of the property can restrict your right to take a photo. That restriction does not have to be posted, and they can just come up to you and tell you to stop photographing.

The right to use a photograph --- It makes no difference where you shot a photograph, even if it was wrongly taken in a private space when it comes to the right to use the photograph. The First Amendment of the Constitution guarantees your right (free speech) to publish or display your photograph once you have taken it. HOWEVER, the Constitution contains an implied right to privacy also so people have a right to protect their privacy and invading it is a civil offense. FORTUNATELY, the courts and legislators have found a way to ease the Constitutional tension between free speech and the right of privacy. That is done by defining when publication or display WILL violate the right of privacy.

A model release is required when a photograph is going to be used for ‘trade or business purposes,’ which are advertising and promotional uses of the photograph. In general, anytime any business is identified with the photograph, like an ad, brochure, business’ website page selling or promoting the company, etc. a model release is required. When the photograph is to be used for display or publication with no commercial message associated with it, no release is required. Such publication or display is an exercise of free speech. So having an online gallery qualifies as free speech even if you sell prints from it. But use the same photo in a brochure advertising your online gallery and you need a release.

A simple example is this. Look at a newspaper or magazine and you will see photos that are informational as part of a publication’s content and photographs that are promotional as part of the publication’s ads. If you had the same photograph in both places in a magazine, you would need a release for the promotional use and no release for the informational use.

If anyone reading this want to know more about when you need permission to use a photo and how you give permission for someone else to use your photography, let me recommend a book I co-authored called licensing photography. It will provide you with more than you will probably ever need to know. You can find it here:

http://www.amazon.com/s/ref=nb_ss_gw?url=search-alias%3Dstripbooks&field-keywords=licensing+photography&x=10&y=18
--

Weisgrau

http://www.gallery.me.com/weisgrau
 
Thank you for the information Richard. If I understand what you've written, I can take a photo in a public place like a city park and sell it without violating any laws even if that photo has recognizable people in it. But if I use that same photo in a brochure to advertise my business I need signed releases. Have I got that right?

I just read an article in the Jan-Feb 2009 issue of Photoshop User (pg. 72) on this very subject. If I understand what they're saying, I need a signed release for any commercial use, even selling the photograph, if it has a recognizable face in it.

They even had an example photograph of a monk walking past a building in Seoul, Korea where they had edited the monk's face so that he was not recognizable so as to not need a signed release.

That's the two things they key on; 1, any commercial use (including a simple sale) and 2, a recognizable face/person.

It could very well be I'm not reading it right. If anyone else read the article, please set me straight.

It is a very confusing subject for us amateurs.

Leroy
 
First of all, thanks for a great written and very informative post! It made some things more clear when it comes to public photography.

I'm never going to use my photos for commercial use or advertisements anyway, so I was only curious about this regarding shooting at public events. I live in Norway, so the rules for this may wary, but Norway is anyway much less strict in general than the US and GBR -- thankfully.
There are two issues in your question not one. They are the right to
photograph and the right to us the photograph.
The right to photograph --- In a public place, like on the street or
in a city or national park, you have the right to shoot anything you
see without permission from anyone unless a permit is required to
shoot as in the case of having a lot of gear (like lights and
tripods0 on location. Permits usually apply only to commercial
shoots, and I have never seen a case in which a amateur or pro was
required to get a permit if only carrying cameras and lenses. On
private property such as a performance center, sports stadium, or
building the management of the property can restrict your right to
take a photo. That restriction does not have to be posted, and they
can just come up to you and tell you to stop photographing.
The right to use a photograph --- It makes no difference where you
shot a photograph, even if it was wrongly taken in a private space
when it comes to the right to use the photograph. The First
Amendment of the Constitution guarantees your right (free speech) to
publish or display your photograph once you have taken it. HOWEVER,
the Constitution contains an implied right to privacy also so people
have a right to protect their privacy and invading it is a civil
offense. FORTUNATELY, the courts and legislators have found a way to
ease the Constitutional tension between free speech and the right of
privacy. That is done by defining when publication or display WILL
violate the right of privacy.
A model release is required when a photograph is going to be used for
‘trade or business purposes,’ which are advertising and promotional
uses of the photograph. In general, anytime any business is
identified with the photograph, like an ad, brochure, business’
website page selling or promoting the company, etc. a model release
is required. When the photograph is to be used for display or
publication with no commercial message associated with it, no release
is required. Such publication or display is an exercise of free
speech. So having an online gallery qualifies as free speech even if
you sell prints from it. But use the same photo in a brochure
advertising your online gallery and you need a release.
A simple example is this. Look at a newspaper or magazine and you
will see photos that are informational as part of a publication’s
content and photographs that are promotional as part of the
publication’s ads. If you had the same photograph in both places in
a magazine, you would need a release for the promotional use and no
release for the informational use.
 
Thank you for the information Richard. If I understand what you've
written, I can take a photo in a public place like a city park and
sell it without violating any laws even if that photo has
recognizable people in it. But if I use that same photo in a
brochure to advertise my business I need signed releases. Have I got
that right?
Yes, you understand that completely. In my brief post I did not mention the fact that the person has to be recognizable because generally, it a person is not recognizable they don't know that they are in the photograph. Altering a person's face enough that they no longer look like they did is one way to deal with the recognizable factor.
I just read an article in the Jan-Feb 2009 issue of Photoshop User
(pg. 72) on this very subject. If I understand what they're saying,
I need a signed release for any commercial use, even selling the
photograph, if it has a recognizable face in it.
It depends upon what "selling the photograph means." If you sell it for display to a person who wants to hang it on a wall, etc, you do not need a release. If you sell the print so it can be published by another person for business or trade use, you do.

The words "commercial" and "selling" are poor choices for such an explanation. If you shoot a wedding and get paid to sell the prints to the married couple, it is commerce and therefore commercial. However, you do not need a release from all the recognizable people (like guests) in the photographs because the use is not for "trade or business:, that is,a advertising or promotion use. If you give (not sell) a photograph to company for use in a brochure (no commerce since no sale) you still need a release because of the nature of the end use. You need only give permission to use (license) the use to be responsible for it.
They even had an example photograph of a monk walking past a building
in Seoul, Korea where they had edited the monk's face so that he was
not recognizable so as to not need a signed release.
I did not see or read the article, so I do not want to speak about the specific example. It sounds OK based upon what you wrote, but if they used unartful terms like commercial and selling I am a bit concerned about the authority of the writer(s). Keep in mind that there is a lot of bad advice in print and on the internet. By bad I mean not written by or unedited by an authority on the topic.
That's the two things they key on; 1, any commercial use (including a
simple sale) and 2, a recognizable face/person.
Spoke to that above - and I disagree with the terminology used.
It could very well be I'm not reading it right. If anyone else read
the article, please set me straight.

It is a very confusing subject for us amateurs.
Yes, that is a fact, and there is a lot of misinformation out there spread by people who think thet are giving the correct advice but who are incorrect.

--
Weisgrau

The best camera to shoot with is the one you have with you when you see the shot.

http://www.gallery.me.com/weisgrau
 
I am always happy to try to keep photographers from getting into trouble.

If you want specific info re Norway, there is a national trade association of photographers there, and I am certain they would have a information about that for you, even though you are not a pro. I dealt with the group on some European issues about copyright. I forget the name of the association, but the representatives of that group were very knowledgeable and helpful.
--
Weisgrau

The best camera to shoot with is the one you have with you when you see the shot.

http://www.gallery.me.com/weisgrau
 
Your posting is the clearest, most authoritative brief statement I've seen on this topic. Thank you for posting it.

But here's another wrinkle: what if the photo--taken in a public place, and used in an "editorial" rather than a trade or business context--is such that it may be considered to hold a person up for ridicule or may be seen as damaging their reputation. Let's say that it's a person carrying a brown bag, and the photo shows them outside a liquor store in a way that may be taken as implying that they just did some shopping there. And, let's say that the person is a teetotaler, and has given speeches on the evils of alcohol. Let's also assume that the photographer did not intend to embarrass the person by the picture; he just took it because the image was an interesting one. What are the legal issues in this situation?

Bob
 
Your posting is the clearest, most authoritative brief statement I've
seen on this topic. Thank you for posting it.

But here's another wrinkle: what if the photo--taken in a public
place, and used in an "editorial" rather than a trade or business
context--is such that it may be considered to hold a person up for
ridicule or may be seen as damaging their reputation. Let's say that
it's a person carrying a brown bag, and the photo shows them outside
a liquor store in a way that may be taken as implying that they just
did some shopping there. And, let's say that the person is a
teetotaler, and has given speeches on the evils of alcohol. Let's
also assume that the photographer did not intend to embarrass the
person by the picture; he just took it because the image was an
interesting one. What are the legal issues in this situation?

Bob
--
Bob,

You raise an issue that is very complicated so there is no simple answer. However, I shall try to keep it as understandable as possible and as brief as possible.

Defamation occurs when you publish a lie about a person that damages them or their reputation. The defense against a defamation claim is whether what was said is true or not. Using the example that you offered, the analysis is simple. The person carrying a brown bag was truly in front of a liquor store. The photograph simply recoded the truth. The photograph does not defame.

If the person with the bag had been inserted into a photo of a liquor store via digital alteration, the photo would be a lie, ans if it damaged the person in the photo it would defamatory.

Here is the nightmare scenario for a pro, and it is a true case. A photographer was doing a story about street gangs in a major city. He took a shot of a group of teens on a corner during the shoot. He did not caption the photo, so he made no statement about who or what the teens were. The magazine published that photo with a caption identifying the teens as members of a street gang. In fact, the teens were not gang members, and the parents sued the photographer and the magazine. The photographer was eventually dropped from the lawsuit because he had not made any representation about the teens. The magazine had added the untrue caption. The magazine, not the photographer had defamed the teens. Problem is that the legal bills to get the photographer dropped from the suit were very high. Fortunately for him the magazine paid his legal expenses.

The cost of defending innocence can be as high as defending guilt. So, the prudent photographer insists that his client indemnify and provide a defense for him or her in the case where the magazine's errors cause the photographer to be sued.

The shortest word of advice is don't let your pictures of people lie about the people. Since a photo as it was made in camera is a record of a true scene, it in itself is not defamatory.

Weisgrau

The best camera to shoot with is the one you have with you when you see the shot.

http://www.gallery.me.com/weisgrau
 
Thanks for the thoughtful analysis. I'm vaguely familiar with some legal cases involving street photography Quebec that went against the photographer, and found a couple of links discussing these: http://photo.net/street-documentary-photography-forum/009s0V http://www.robic.ca/publications/Pdf/173.08.pdf

One of them is fairly similar to my hypothetical example. "A lawyer sued the Montreal Gazette after it ran a photo of the front of a hotel, in which he was visible leaving the hotel carrying a bag. His secretary saw the photo and jokingly asked why he was leaving the hotel in the middle of the day, the implication being he'd been there with a woman. The Gazette argued that the photo was a news photo. They lost."

The general conclusion is that the law in Quebec--like France--is not very photographer-friendly.

Bob
 
Bob,

I hadn't realized that you were speaking of a Canadian situation, and I stated my opinion based upon US law and judicial decisions. It is important for readers to know that whatever information I offer is based upon circumstances in the USA, and that in it may not be applicable in other countries.

--
Weisgrau

The best camera to shoot with is the one you have with you when you see the shot.

http://www.gallery.me.com/weisgrau
 
Thanks for these VERY informative posts. I am taking them to mean that any art use (gallery/museum/public exhibition or publication) does not require a release.
 
Hi Richard,

Great to benefit from your expertise so far. One more for you, I hope you are not fed up yet.

I took pictures of a local market and a retailer friend asked me to display some in his shop window. Main topics are the stands, the illumination etc. People are portrayed as bystanders but not as main subjects. However you can of course identify many persons and the time of the photos is defined as dusk on the only day the market took place.

Now, of course, the theoretical question: a wife from a neighbouring town identifies her husband beside her best friend as a visitor to the market, and unfortunately the husband has claimed to be interstate alone on that day.

Would I have to pay for the divorce in any country where you are familiar with the laws?

Thanks and cheers, Ralph
--
  • -Better a small camera in the pocket than a big one on the shelf --
 
Would I have to pay for the divorce in any country where you are
familiar with the laws?

Thanks and cheers, Ralph
--
Ralph,

I no of no place where you would have to pay for the divorce. Your camera uncovered a lie and did not make one. But, I'd be very sure to stay out of the way of that husband so you would not risk paying in flesh.

Richard

--
Weisgrau

The best camera to shoot with is the one you have with you when you see the shot.

http://www.gallery.me.com/weisgrau
 
Just want to say that threads like this is one of the reasons I'm addicted to this forum. I have learned so much, and regained my interest in photography (after 23 years of leaving a professional career) from just coming here, first, to pick a good p&s, and since bought 2 cameras and 2 flashes. This quality of people and photographers makes this a daily 'look' for me. Thank you so much for the knowledge and inspiration that has gotten an "old" woman back into enjoying photography!
Priscilla
--

'When you change the way you look at things, the things you look at change!' ...Wayne W. Dyer
 
Thanks so much for the replies to this thread. I've found it very helpful. One more question, if you would be so kind.

If someone were to self-publish a photo book on street photography or travel, is this something that requires model releases?

Similarly, what about a photo book of American architecture?
 
If someone were to self-publish a photo book on street photography or
travel, is this something that requires model releases?
No. Think about books from other photographers. Is it likely that Garry Winogrand had model releases for all of the people in his photos of street scenes? It is not even possible.

That said, you can be sued over anything, even if there is no merit in the lawsuit. And the likelihood of being sued diminishes the more inaccessible the region of the world and the poorer the persons in the photo.
 
for taking time to go into great detail on this issue. Very nice of you, and I want you to know that I appreciate this.

--
Jada

Let's do it! Let's move to Mars.
 
Once again, I must advise that this information is based upon US law only.

You do not need releases for the photographs used in a book of street or travel photography, or for that matter any subject matter that might go into a book. A book is protected First Amendment Speech. If you do a book, you should keep this thought in mind. If a publisher wants to use photographs in the book to advertise the book, a release would be required from people in those photographs because of the usage (advertising). That is usually contractually the publisher's choice. Contracts usually state that the author has all permissions necessary for the publisher's uses. You want to be sure to have a contractual clause that declares that There Are No Releases for the photographs, and that the publisher will provide a defense and indemnify you for any advertising use of the photographs. The other option is to specify that no advertising use will be made of the photographs. In any event, it would be wise to have a lawyer check any book contract before you sign it

In the case of architecture, you might need a release for some photographs. Obviously a building does not have right of privacy so no release is needed on those grounds. HOWEVER, a building is based upon a design, and therefore actually can have a copyright in force that limits the right to make reproductions of it. Understanding that it is impossible not to capture buildings in many photographs and films, the Copyright Law deals with the matter this way. Even though a building may be protected by copyright, if it can be seen and is photographed from a public vantage point, no permission of the copyright owner is required to publish it. HOWEVER, if the building cannot be seen and photographed from a public vantage point it is has full copyright protection and a license to reproduce photographs of it is required.

--
Weisgrau

The best camera to shoot with is the one you have with you when you see the shot.

http://www.gallery.me.com/weisgrau
 

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