Using Photos of Strangers?

Started Apr 16, 2014 | Discussions thread
photoreddi Veteran Member • Posts: 7,949
Re: Using Photos of Strangers?

Lisetta wrote:

Danielepaolo wrote:

Lisetta wrote:

Quick question. I believe, but am not certain, that if you sell a photo with anyone in it you need to have a signed model release form from them along with some (often token) compensation.

So if you, for example, had a book with a photo in it of the Washington Monument with people in it who were identifiable but hadn't given signed consent, you couldn't use it, correct?

These people are in a public place so I don't think it matters.

That's what a lot of people think, but it isn't true.

Here's a link to a Steve's Digicam note about it, but I was looking for something more as well.

I have to disagree here. The first paragraph in that article ends with this :

Foremost among those questions is whether or not you need the subject's permission to sell the photographs, and the answer is, it depends.

And it probably matters where the photography too place as well as the jurisdiction. This article on street photography's legalities only addresses NYC but it's probably similar in many more jurisdictions than it isn't.


In his lawsuit, Nussenzweig argued that use of the photograph interfered with his constitutional right to practice his religion, which prohibits the use of graven images.

New York state right-to-privacy laws prohibit the unauthorized use of a person's likeness for commercial purposes, that is, for advertising or purposes of trade. But they do not apply if the likeness is considered art. So diCorcia's lawyer, Lawrence Barth, focused on the context in which the photograph appeared. "What was at issue in this case was a type of use that hadn't been tested against First Amendment principles before - exhibition in a gallery; sale of limited edition prints; and publication in an artist's monograph," he said in an e-mail message.

"We tried to sensitize the court to the broad sweep of important and now famous expression that would be chilled over the past century under the rule urged by Nussenzweig." Among others, he mentioned Alfred Eisenstaedt's famous image of a sailor kissing a nurse in Times Square on V-J Day in 1945, when Allied forces announced the surrender of Japan.

Several previous cases were also cited in diCorcia's defense. In Hoepker v. Kruger (2002), a woman who had been photographed by Thomas Hoepker, a German photographer, sued Barbara Kruger for using the picture in a piece called "It's a Small World ...Unless You Have to Clean It." A New York federal court judge ruled in Kruger's favor, holding that, under state law and the First Amendment, the woman's image was not used for purposes of trade, but rather in a work of art.

Also cited was a 1982 ruling in which the New York Court of Appeals sided with The New York Times in a suit brought by Clarence Arrington, whose photograph, taken without his knowledge while he was walking in the Wall Street area, appeared on the cover of The New York Times Magazine in 1978 to illustrate an article titled "The Black Middle Class: Making It." Arrington said the picture was published without his consent to represent a story he didn't agree with. The New York Court of Appeals held that The Times's First Amendment rights trumped Arrington's privacy rights.

In an affidavit submitted to the court on diCorcia's behalf, Peter Galassi, chief curator of photography at the Museum of Modern Art, said diCorcia's "Heads" fit into a tradition of street photography well defined by artists ranging from Alfred Stieglitz and Henri Cartier-Bresson to Robert Frank and Garry Winogrand. "If the law were to forbid artists to exhibit and sell photographs made in public places without the consent of all who might appear in those photographs," Galassi wrote, "then artistic expression in the field of photography would suffer drastically. If such a ban were projected retroactively, it would rob the public of one of the most valuable traditions of our cultural inheritance."

Neale Albert, the lawyer who represented Pace/ MacGill, said the case surprised him: "I have always believed that the so-called street photographers do not need releases for art purposes. In over 30 years of representing photographers, this is the first time a person has raised a complaint against one of my clients by reason of such a photograph." State Supreme Court Justice Judith Gische rejected Nussenzweig's claim that his privacy had been violated, ruling on First Amendment grounds that the possibility of such a photograph is simply the price every person must be prepared to pay for a society in which information and opinion freely flow. And she wrote in her decision that the photograph was indeed a work of art. "Defendant diCorcia has demonstrated his general reputation as a photographic artist in the international artistic community," she wrote.

But she indirectly suggested other cases might be more challenging. "Even while recognizing art as exempted from the reach of New York's privacy laws, the problem of sorting out what may or may not legally be art remains a difficult one," she wrote. As for the religious claims, she said: "Clearly, plaintiff finds the use of the photograph bearing his likeness deeply and spiritually offensive. While sensitive to plaintiff's distress, it is not redressable in the courts of civil law."

Philip-Lorca diCorcia, whose book of photographs "Storybook Life" was published in 2004, said that in setting up his camera in Times Square in 1999: "I never really questioned the legality of what I was doing. I had been told by numerous editors I had worked for that it was legal. There is no way the images could have been made with the knowledge and cooperation of the subjects. The mutual exclusivity, that conflict or tension, is part of what gives the work whatever quality it has."

Nussenzweig is appealing. Last month his lawyer Jay Goldberg told The New York Law Journal that his client "has lost control over his own image."



And so it goes (or went). If DPR's lawyers decided that all gallery photos that included people (even in public places) needed written permissions, the galleries would be decimated. At least cats, dogs, squirrels and birds don't have to sign consent forms. But maybe, just maybe, they should.

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