Post by: Ivophoto on July 31, 2018, 05:57:48 am
https://petapixel.com/2018/07/30/taking-photos-without-consent-is-like-unwanted-touching-sf-street-fair/ (https://petapixel.com/2018/07/30/taking-photos-without-consent-is-like-unwanted-touching-sf-street-fair/)
Post by: Eric Myrvaagnes on July 31, 2018, 08:41:55 am
Post by: RSL on July 31, 2018, 09:13:34 am
Somebody needs to explain the legal concept of expectation of privacy to these people. If you're in a "public space" you have no expectation of privacy. If you want to have an expectation of privacy, get out of the street.
And it's not a vote, Eric. It's the law.
Post by: Slobodan Blagojevic on July 31, 2018, 09:51:25 am
While it is encouraging that the vote is overwhelmingly in photographers favor, it is worth noting that PetaPixel is a site frequented predominantly, if not exclusively, by photographers.
It reminds me ow my own experience in the Red Light district of Amsterdam, which has some similarity in appearance, if not functionality, with the SF event.
I was with my then-wife and found something of interest to photograph (duh! It is Amsterdam). So I pull out my camera and changed the lens to a 180mm telephoto, as the object of my interest was across a canal. The object was an... architectural detail (duh!).
That’s when I heard a loud and angry female voice rapidly approaching me from behind, threatening to throw “me and my f*$#ing camera” into the canal, for taking pictures of... her fellow working girls (as she thought). It was a film era, so I couldn’t show her the pictures I took. Luckily, I remained dry (and my camera).
Which does raise an issue: what expectation of privacy you expect to have when you deliberately walk naked or semi-naked in a public space? The answer is not necesarily a simple “none.” I heard arguments that seeing with eyes only and recording it for posterity are not the same thing.
The other issue these days are cell phones. They are ubiquitous and mostly stealth, and so many people are using them simultaneously that it is difficult for those who object to being photographed to go after all of them. Which also puts “real” photographers on the spot immediately, as we stick out like a sore thumb, especially us with long, white lenses.
Having said that, I think that equating taking photographs with a sexual assault is a bit rich. Then again, I am a photographer.
Aha! As I was finishing writing this, I remembered another similar example: naked, though body-painted ladies of the Times Square. They were photographed (and photographed with, for selfies) probably a million times. I have a few too (not selfies though).
Post by: Bart_van_der_Wolf on July 31, 2018, 10:23:25 am
Which does raise an issue: what expectation of privacy you expect to have when you deliberately walk naked or semi-naked in a public space? The answer is not necesarily a simple “none.” I heard arguments that seeing with eyes only and recording it for posterity are not the same thing.
Exactly, the answer is not a simple "none"!
A similar argument could be used for a music performance in public. Usually free to listen too, but recording will formally infringe on the performer's copyright. And in the Netherlands, we actually do have a section about "Portrait right" as part of the Copyright legislation. But then Privacy legislation is also different (much stricter) from the USA, as e.g. Facebook and Google have found out.
Quote
Having said that, I think that equating taking photographs with a sexual assault is a bit rich.
It is, and there is no legal basis for it either.
Cheers,
Bart
Post by: amolitor on July 31, 2018, 10:32:01 am
The first is the right to photograph in public spaces, which a sub-issue of whether it is reasonable to request (as a matter of politeness and respect) that photographers ask before shooting.
The second is the juxtaposition of "photographing" with "touching" which is culturally fascinating. The fair organizers will no doubt eventually issue a statement to the effect that this was an accident, but there's no doubt that humans (secretly) seem to think that photography is terribly invasive and that this juxtaposition is more appropriate than not. See also photographing children.
If I recall correctly, it was Baudelaire who felt that photography peeled off a layer of the person and took it away.
Post by: JoeKitchen on July 31, 2018, 10:50:10 am
Exactly, the answer is not a simple "none"!
A similar argument could be used for a music performance in public. Usually free to listen too, but recording will formally infringe on the performer's copyright. And in the Netherlands, we actually do have a section about "Portrait right" as part of the Copyright legislation. But then Privacy legislation is also different (much stricter) from the USA, as e.g. Facebook and Google have found out.
It is, and there is no legal basis for it either.
Cheers,
Bart
This would only be the case if you are in fact recording a video with sound, but without sound, it is not a copyright violation. There is no part of a performance that can be copyrighted except for the music and the photographer owns the copyright from the moment of creation, unless the photographer signs an agreement stating otherwise (a recent point of contention for photographers who happen to shoot Taylor Swift). Costumes, dress, make-up, theatrics, etc. are all considered utilitarian in nature, and, by USA copyright law, can not be copyrighted.
Remember the left Shark incident during the half time show a few years back. Katy Perry sued the artist making left shark dolls on copyright violation and lost, since costumes, just like clothing, can not be copyrighted.
In fact, you have have no right to privacy in a public space, since it is public. That is the law in the USA.
Now there is a thing called the right to publicity, which is your right to be accurately depicted in "newsworthy" publications and your right to decide if your image can be used in "advertising" publications. This is totally different then the right to privacy and only becomes an issue if the images are used in a false light. Such as if someone published images of this event and called all of those within the images prostitutes, that would a violation of the right of publicity. But this only arrises for the use of the images, not actually capturing them.
Or at least this how it was explained to me by a lawyer well versed in the subject.
Post by: Jim Metzger on July 31, 2018, 11:33:08 am
Post by: Slobodan Blagojevic on July 31, 2018, 12:24:05 pm
Hypothetically would our rights to photograph from a public space allow me to require all pedestrians move out of my field of view? ...I imagine there would be different answers depending on whether the image was to be used for personal, editorial or commercial use.
Nothing and no type of use would allow you to require anyone to move out of your field of view. Short of politely asking.
Post by: John Camp on July 31, 2018, 12:39:25 pm
Hypothetically would our rights to photograph from a public space allow me to require all pedestrians move out of my field of view? How do our rights as photographers impact the public at large? I imagine there would be different answers depending on whether the image was to be used for personal, editorial or commercial use.
Our rights as photographers (in public) are exactly the same as the rights of non-photographers. The same is generally true of reporters -- reporters and photographers MAY be given special privileges by the government or private organizations (like access), but they're not required to. But if it's in public, it's public (in the US.)
A photograph is distinct from the photographer. If in public, you can take a picture, say, of a naked person and look at it privately, or present it as art, or use it editorially (as news) but you can't use it in an advertisement (a commercial purpose) without permission. There are some few difficult areas -- a newspaper could use a photo of a naked person taken in public as editorial matter, but probably couldn't use it to advertise the paper itself. A photographer could present the picture as art, but probably not as an advertisement for, say, his website, or on a business card, without permission from the person shown. Those complications are sometime thrashed out in court.
Post by: Alan Goldhammer on July 31, 2018, 01:20:54 pm
Post by: Ivophoto on July 31, 2018, 01:23:50 pm
I know there is case law and precedents about privacy and portrait right. I was administrative arrested once because I made a picture in central station Antwerp. The undercover agent claimed I specifically pointed to him and he said he didn’t wanted to be the subject of a picture. It is correct, I ‘m fine to make a picture of a public place with peoples, if I isolate one on the photo, this could breach his or here privacy and he or she could apply to her portrait right.
I was shooting on film (could not give him a chimp) and I replied him with the above to make him clear I knew what I was doing.
He backed of a bit but before he let me go he gave me a fine because according to a 19 century Belgian law rail stations are of military importance and therefore not allowed to photograph without consent of the rail station master.
Post by: RSL on July 31, 2018, 01:28:06 pm
From a historical perspective I wonder when things changed. Did Diane Arbus or Robert Frank get signed model releases?
Of course not, Alan, but they weren't using their photographs for advertising.
Post by: RSL on July 31, 2018, 01:31:00 pm
Post by: Alan Goldhammer on July 31, 2018, 01:47:59 pm
Of course not, Alan, but they weren't using their photographs for advertising.So any other commercial use other than advertising is OK?
Post by: JoeKitchen on July 31, 2018, 02:30:22 pm
So any other commercial use other than advertising is OK?
So far as the law is concerned, there are only two uses: newsworthy and advertising. Any commercial usage (even use in a website for basic collateral marketing) would be considered advertising, and how strict of an application to allow a suit to move forward would vary by state.
In all states, an actual news story would not be grounds for a suit, unless the new story was false and defaming.
But if you look at say usage on a website to promote a business, how the courts would move forward would be very different between states. In PA,if an architect used an overall wide shot of his building with people in it and did not get model releases, he would probably get away with having recognizable people in the images on his website and would not have to worry about a suit making it to court. In NY however, if you did not have the model releases and a suit was brought against you, you'd be screwed.
Now fine art usage is kind of a grey issue, like was noted before. For instance, if a person did not want their likeness in an image being hung in an art gallery, they would not be able to sue. However, you do need to market the art show, and use on the marketing (such as cards, website, etc.) would be grounds to sue.
An interesting story I heard from a galleryist was a photographer did a project in Europe but did not bother getting releases. He did not think anything of it since he would only be hanging the images in the States. The week the show went up, it just so happened that one the women whom he photographed in Europe and who's picture they decided to use on the cards and posters, vacationed to NYC. She saw the posters and sued both the photographer and gallery, and won.
Talk about bad luck.
Post by: RSL on July 31, 2018, 02:37:01 pm
So any other commercial use other than advertising is OK?
If you're going to ask a question like that, Alan, you'd better get specific about what you mean by "commercial use." If I'm using your photograph to sell toothpaste, I'd better have a model release. But there are other kinds of selling.
The question that pops up in my retirement community is whether or not, say, a picture on the community web of a the choir performing a Christmas concert is advertising. I've had many discussions with the powers that be over that one. The problem is that the community web also includes real estate sales. As far as I'm concerned, a separate club website that contains community activities like the choir, even though it may be linked to the main site, doesn't represent selling. I don't think the question ever will be answered until there's a similar case in court.
Then you come to this question: I shot a picture of you on the street and it's now in a local gallery for sale. Isn't that selling? Actually it's not. It's art. That's different.
It can get pretty complicated. But none of that changes the meaning of "expectation of privacy." I can shoot a picture of you on the street and display it. You can't stop me from doing that. When you're out there on the street you have no expectation of privacy.
And Joe, you're right. You can hang your pic in a gallery and sell it, but unless you have a release you can't use it on a poster advertising the gallery.
I should add that these are my personal opinions. I'm not an attorney. I leave that to my second son who is an attorney and who for a while specialized in intellectual property.
Post by: RSL on July 31, 2018, 02:52:33 pm
Post by: KLaban on July 31, 2018, 02:57:20 pm
I probably should add that it can get even hairier than what we've covered so far. Suppose I shoot a picture of Alan with no model release (I'd never do that, even with a model release) and put it in a gallery. The picture sells. The buyer then uses the picture in an advertisement for his marihuana business. Can Alan sue the new owner of his picture? Can he sue me?
Or even demand samples?
Post by: 32BT on July 31, 2018, 03:36:15 pm
Or even demand samples?
Ha, which brings us right back to Amsterdam: i'm fairly sure the woman wasn't actually objecting to Slobodan taking pictures of scantily dressed women, but was probably creating noise to attend certain "sales people" to a potential threat.
Post by: JoeKitchen on July 31, 2018, 03:56:01 pm
I probably should add that it can get even hairier than what we've covered so far. Suppose I shoot a picture of Alan with no model release (I'd never do that, even with a model release) and put it in a gallery. The picture sells. The buyer then uses the picture in an advertisement for his marihuana business. Can Alan sue the new owner of his picture? Can he sue me?
Typically the photographer is not the one who is being sued, it is the end user, so you would be free and clear. Even if you were sued, more then likely the gallery (assuming they know what they are doing) would inform the buyer that the purchase of the print does not authorize him to use the image commercially and the gallery may even require the buyer to indemnify the photographer to cover such cases. This would allow you to then sue the buyer for not only breach of contract and copyright (their commercial usage), but to also settle your other court costs with the other case.
More then likely though, you would not even be brought into the suit.
However, the business owner would certainly loose in this situation.
This actually happens in contests all the time. Usually what happens is some clothing company is looking for a lot of free images and runs a photo contest with some (usually worthless) prize to the winner, like a $500 gift certificate. Of course buried in the contest contract is pretty much a rights transfer clause that states you are allowing them to use your images however they want. They then use your images, but the person whom is in the images never signed a waiver for the company to use the images. That person then sues and wins a large amount of money, or that is how it use to be. Nowadays, companies that do this also add another indemnification clause in the same contest contract stating that the photographer has a model release for all people in the image and, if not, they indemnify the clothing company from any lawsuits.
This is why if you talk to any pros, they are leery about enter contest nowadays.
Building supply manufacturers do this shit all the time. Typically I get a request from an architect asking me to sign a release for some contest they want to enter my images in and I then have to explain to them why I can not sign due to the rights grab of the contest and a blanketed indemnification clause. Many understand, but it is always an uncomfortable conversation to have.
Post by: RSL on July 31, 2018, 04:28:19 pm
Or even demand samples?
He probably can do that, Keith. ;D
Post by: Alan Goldhammer on July 31, 2018, 09:11:04 pm
I probably should add that it can get even hairier than what we've covered so far. Suppose I shoot a picture of Alan with no model release (I'd never do that, even with a model release) and put it in a gallery. The picture sells. The buyer then uses the picture in an advertisement for his marihuana business. Can Alan sue the new owner of his picture? Can he sue me?That would be an OK use of the image as far as I'm concerned. In terms of free samples asked by Kieth, no way. I've been drug free since 1973 and don't want to fall off that wagon!! One of my lab partners in grad school had his PhD thesis topic analyzing the metabolites in marijuana smoke; turns out they were 10 times higher than in cigarettes. I quit cold turkey when he showed me the data. We used to kid him about the project as he was a Mormon and did not smoke or drink saying he was the only one they would let work on this. That kidding aside, the MJ they got was grown on a government farm in Mississippi for research and they had to account for every ounce.
I'm still a little confused and realize the advertising use as one requiring a release. I just bought a great book by Neal Preston who is one of the great rock music documentary photographers of our day. I'm sure a lot of his images have sold and the book 'Exhilirated and Exhausted' (https://www.reelartpress.com/catalog/edition/105/neal-preston:-exhilarated-and-exhausted) is fantastic. Did he have to get model releases from all the people he took pictures of? I'm sure some of those images were used in posters, etc.
Post by: Martin Kristiansen on August 01, 2018, 03:08:09 am
Post by: JNB_Rare on August 02, 2018, 10:36:12 am
I probably should add that it can get even hairier than what we've covered so far. ...
Especially if it's chaps wearing chaps and little else. I wonder if consent would be easier if the photographer wore only chaps? On a personal level, the older I get, the less interested I am in sub cultures. I don't care to photograph or even see pictures of people who want to waggle their winkies in public, or pierce multiple parts of their bodies, or play Nazi. But it does seem to me that such parades are public performances designed to draw attention to the "statement/cause(?)". I have more sympathy for some of the surprised subjects of the more aggressive street photographers.
Post by: RSL on August 02, 2018, 10:45:45 am
I have more sympathy for some of the surprised subjects of the more aggressive street photographers.
John, I'm gonna get dissed for saying this, but the kind of "street photographer" you're talking about doesn't really understand what street photography is all about. It's not about performances, or showing the absurdities people can come up with. It's about showing the often subtle interrelationships between people and between people and their environment. The best street shots don't clobber you. They caress you.
Post by: Jim Pascoe on August 02, 2018, 01:10:05 pm
It's not the 1950's it's 2018. Whereas once there would have been a few people taking pictures at events, now with 'everyone being a photographer' there could be thousands. So many events now just seem to be a photo opportunity where photographers go to grab some pictures. Possibly people want to gather with like minds and enjoy a day - without having endless cameras shoved in their face (or possibly in more intimate areas). In truth I know nothing about this particular event - but I can easily imagine the scene with crowds of sweaty old men lugging around the latest cameras and trying to get a titillating picture for their collection. (I know, I know, that is a horrible generalisation. I like old people really I do - half our friends are 20 - 30 years older than us).
Anyone with a genuine interest in the event and the characters in it will likely be happy to chat with participants and politely ask. That would cut down the numbers of voyeurs drastically and leave the serious photographers to get some decent pictures, including the press photographers.
You could read the ad as comparing unwanted touching to photography. I think they're two distinct things that are real irritants to participants, even if neither are illegal. I'm assuming the unwanted touching is not sexual in nature, in which case it probably would be illegal. Nowhere in the ad does it suggest the actions are illegal, or that transgressors would be arrested. It's asking for a bit of common decency. Of course you are free to just push in, get your pictures and be damned if that is in your nature....
I would add that I love photographing people, sometimes in public places, and like nothing more than a bit of naked flesh too!
Jim
Post by: JNB_Rare on August 02, 2018, 02:13:58 pm
John, I'm gonna get dissed for saying this, but the kind of "street photographer" you're talking about doesn't really understand what street photography is all about. It's not about performances, or showing the absurdities people can come up with. It's about showing the often subtle interrelationships between people and between people and their environment. The best street shots don't clobber you. They caress you.
Definition(s) aside, the bit of your post that I've highlighted is certainly what interests me most.
Post by: JNB_Rare on August 02, 2018, 02:29:31 pm
The law may be one thing but common respect is another. While I fully support the law on freedom to photograph people in public places, I think it is a quite reasonable request at a fair such as this for photographers to ask before shooting. There may be people there that are happy to bare all on the day because of the atmosphere at the event, but not want their pictures splashed across Instagram or Facebook for the rest of their lives.
Just some random thoughts ...
1. Common respect doesn't seem to be that common these days
2. If you need to ask permission beforehand, does that kill spontaneity, and/or change the photographer/subject relationship?
3. Despite ongoing legal battles about it, have we already reached the point where any expectation of privacy in a public space is naive?
Post by: Jim Pascoe on August 02, 2018, 03:02:28 pm
Just some random thoughts ...
1. Common respect doesn't seem to be that common these days
2. If you need to ask permission beforehand, does that kill spontaneity, and/or change the photographer/subject relationship?
3. Despite ongoing legal battles about it, have we already reached the point where any expectation of privacy in a public space is naive?
1. That's in our hands...
2. Sometimes it does yes. The problem is that there are just so many snappers out there - the majority not that good.
3. I don't know about laws - but see 1. above - it's down to us isn't it?
Jim
Post by: Rob C on August 03, 2018, 05:26:54 am
Being photographed must be enough to make their day, or even their year! It's validation of whatever in hell they think they have just expressed.
Dangerous wedges come with very fine leading edges. Be careful what you give up - unless it's your machine gun!
Rob
Post by: Slobodan Blagojevic on August 03, 2018, 11:06:40 am
...I remembered another similar example: naked, though body-painted ladies of the Times Square. They were photographed (and photographed with, for selfies) probably a million times. I have a few too (not selfies though).
And naked cowboys... that's how they do it in the Sin City... no permission needed, tips appreciated:
Post by: Ivophoto on August 03, 2018, 11:36:15 am
And naked cowboys... that's how they do it in the Sin City... no permission needed, tips appreciated:
Why are the photos of the naked cowboys converted in B/W and the naked lady left in vibrant colors? Is there a Freudian reason? (I would probable not photographing the cowboys, but that’s Freudian as well, I guess)
Post by: Slobodan Blagojevic on August 03, 2018, 11:42:05 am
Why are the photos of the naked cowboys converted in B/W...
In the second photo at least, it is black and white... by nature ;)
Post by: Frans Waterlander on August 03, 2018, 12:40:02 pm
In the second photo at least, it is black and white... by nature ;)
Now that's very funny (or is it racist?).
Post by: Rob C on August 04, 2018, 07:58:29 am
Now that's very funny (or is it racist?).
Probably just logical.
Rob
Post by: Rob C on August 04, 2018, 08:06:19 am
What about the rights and desires of those who want to do some little touching? "Unwanted" is such a totally enveloping concept, as if were a cut and dried deal with no room for compromise. I can understand a possible antipathy to being photographed, but touched? Gently? Isn't touchy-feely still all the rage?
Used to make the world go round.
:-)
Post by: LesPalenik on August 04, 2018, 08:45:39 am
What about the rights and desires of those who want to do some little touching? "Unwanted" is such a totally enveloping concept, as if were a cut and dried deal with no room for compromise. I can understand a possible antipathy to being photographed, but touched? Gently? Isn't touchy-feely still all the rage?
:-)
Very much so. To do or to get some touching.
Some of the photographs above suggest that the model is just asking to be touched.