Luminous Landscape Forum
The Art of Photography => The Coffee Corner => Topic started by: FrankG on October 05, 2012, 08:26:36 pm
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Can anyone tell me what the law is pertaining to the use of "street photographs" in which the people are recognizable? The photos are not to be used to promote a product or service but may be for sale in a gallery, published in a magazine, or in a limited run 'portfolio' book (self-published rather than commercial publishing/distribution). I am in Canada but would
be interested to know about the US, UK & other countries too.
There is the famous lawsuit (New York) brought by a subject against Philip Corcia diLorca. The man not knowing he was being photographed on the street, objected to prints being sold in a gallery and profit being made off them. To him that was 'commercial use'. The court ruled in favour of the photographer.
And of course all the 'journalistic' work done by all the photographers with Magnum and many other picture agencies. There is no way that they are carrying model release forms and stopping the street activity to ask for signatures.
What's the scoop?
Thanks
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Frank,
It is not something with which I am intimately familiar but what I do know is that the law changes from country to country. Perhaps consultation with a lawyer specialising in intellectual property or privacy might be money well spent.
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I believe in Aust; and stress "I believe", anyone can take photos of most people, places and things from a PUBLIC place. That means I can photograph someones home from the street. I can walk in a street blazing away and everyone in that street is fair game
If someone "important" was prominently displayed in a photo it may make sense to contact that person before using that photo in a display/gallery. Sadly there seems to be too many hungry and greedy lawyers around these days.
I really believe the recent photography of Kate and William will have an impact on "street" photographers in the future.
There are lot of restriction of photography at beaches; schools, school sports and some buildings. Someone with a big white 500mm lens above the beach will get the move on order. Hopefully someone like me with a Panasonic 200 (from next week ;)) will not be so obvious. ::)
So down here a model release should not be required for general street photography. And if someone did object, I'm sure if that photo was removed from display if requested all would be OK. LOL I would offer them the photo as a special price ::)
I'm miles from any cities ATM but I would love to do that sort of street photography
Like most things; commonsense will keep most out of trouble.
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Frank, Walter's got the right idea. You need to get legal advice from an attorney in the jurisdiction where you plan to sell or display your pictures. For a general overview of the law in the US, go to http://www.krages.com/phoright.htm and download Bert Krages's one-sheet PDF summary. The Author is an attorney and a photographer. The PDF summary is a single sheet that you can print and carry with you to hand to any rent-a-cop who gives you a problem. For more extensive coverage of the subject, check Bert's Legal Handbook for Photographers: The Rights and Liabilities of Making Images. My second son is an attorney whose specialty is intellectual property and I'd like to be more specific, but I'm not in a position to give legal advice.
One more thing that Ian brought up: There's a thing called "right of publicity" that applies to celebrities (not politicians) that makes them the only ones who can release their personal likenesses. You gotta be careful about that one.
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I am in Canada but would be interested to know about the US, UK & other countries too.
In Germany, and I believe in most parts of the EU, regulations are much more restrictive than in the US. Here you are not even allowed to take a picture of a person without his or her consent. Unless the person cannot be identified from the image. Therefore some just resort to photographing silhouettes or peoples backs. That's why you often find images of suspects or criminals in newspapers with their faces pixelated (a black bar over the eyes is not that common anymore).
There are some exceptions however: If a person is not in integral part of an image, e.g. you are shooting architecture and there's a person walking across the frame, that's not a problem. Furthermore if you attend any form of public event like a parade, fair, demonstration, or whatever you are assumed to accept the risk of being photographed.
This is not the end of all street photography though. As I mentioned, to photograph a person you need his or her consent but that does not need to be in the form of a written piece of paper or a contract. It is generally assumed that if you make you intentions clear to take a picture and your 'model' does not act in a defensive or evasive way this can be interpreted as a form of consent.
Now officially that would rule out all kinds of candid images but practically, if you take care that you subject notices you immediately afterwards and is aware of just being photographed and does not protest, you would be fine.
So all in all the situation for street photographers is rather challenging but it can be done. You just have to be honest about it (but you can't be a B. Gilden either!).
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In Germany, and I believe in most parts of the EU, regulations are much more restrictive than in the US. Here you are not even allowed to take a picture of a person without his or her consent. Unless the person cannot be identified from the image. Therefore some just resort to photographing silhouettes or peoples backs. That's why you often find images of suspects or criminals in newspapers with their faces pixelated (a black bar over the eyes is not that common anymore).
There are some exceptions however: If a person is not in integral part of an image, e.g. you are shooting architecture and there's a person walking across the frame, that's not a problem. Furthermore if you attend any form of public event like a parade, fair, demonstration, or whatever you are assumed to accept the risk of being photographed.
This is not the end of all street photography though. As I mentioned, to photograph a person you need his or her consent but that does not need to be in the form of a written piece of paper or a contract. It is generally assumed that if you make you intentions clear to take a picture and your 'model' does not act in a defensive or evasive way this can be interpreted as a form of consent.
Now officially that would rule out all kinds of candid images but practically, if you take care that you subject notices you immediately afterwards and is aware of just being photographed and does not protest, you would be fine. So all in all the situation for street photographers is rather challenging but it can be done. You just have to be honest about it (but you can't be a B. Gilden either!).
Boy, that's one wide open to argument! How on Earth could you prove the point one way or the other?
Rob C
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I walked by a house yesterday with my camera in hand and a dog barked. I looked at the house and recognized it as a friend's house and kept walking and not taking an image of the property. I then stop a few yards further on and took shots of a tree with autumn colours. Meanwhile a women had left the house and challenged me about looking at the house and asking what I was photographing? I told her I was in a public place and doing no wrong. It didn't placate her. I asked her if she was the wife of the person I knew which she replied yes but her husband wasn't in. This settled everything down. Afterwards I wondered that if I was up to no good then the women was in danger by leaving her house in what was a quiet street with nobody else about. I could have mugged her and entered her house. Her lack of photographic rights had put her in danger. :o
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Boy, that's one wide open to argument! How on Earth could you prove the point one way or the other?
I don't see what's so complicated about this. It more or less boils down to common sense. Make your intentions obvious. If someone seems not interested in being photographed - don't do it. If that person seems not to care or even gives you a smile, then go ahead. When to try to photograph someone stealthily you are potentially(!) in trouble.
The underlying ideas is the personal right that everyone should be able to decide on his own if and in what context images of his person should be published or not.
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I don't see what's so complicated about this. It more or less boils down to common sense. Make your intentions obvious. If someone seems not interested in being photographed - don't do it. If that person seems not to care or even gives you a smile, then go ahead. When to try to photograph someone stealthily you are potentially(!) in trouble.
The underlying ideas is the personal right that everyone should be able to decide on his own if and in what context images of his person should be published or not.
Fips, that's the problem, the difficulty: Interpretation. Were it not so, there'd be no legal profession.
Rob C
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Many aspects of the infinitely variable scenarios are open to interpretation by courts according to local laws.
In my specific case, as the original poster, the people in the street scenes are not large in the frame, as they'd be in portraits, but because of their 'smallness' they lend weight to the picture, the concept, and are thus not 'incidental' passers by. Plus they're recognisable. So they could argue privacy/harm/embarassment etc etc.
It's such a grey area and i am wondering if I can make a Blurb book and/or show/sell prints.
if you're interested you can look at my site under 'tell me a story' http://www.frankgross.com/pages/story.html,
and/or,
see a few samples or on my facebook photographer page under the album 'portfolio 1- stories'
https://www.facebook.com/media/set/?set=a.10150729532879136.465947.163495914135&type=3
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Frank, I checked your web and saw some very good street photography -- actual street photography as opposed to just photography on the street, which the majority of people who've never studied street photography think is street photography. I'd love to see a book of your stuff. It's good.
I can't talk about the laws in any country but the US, but Bert Krages's book will tell you that in the US you're generally on solid ground if your pictures are being published in an editorial context or displayed and sold as artworks. I don't have time to do it for you, but I'd bet a half day of searching on Google would turn up the information you're looking for regarding your local market. Please spend some time doing it. I'd put down a deposit for your first book of street photography right now if it were possible.
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I think the pictures are very good as thumbprints, but that damned window opening up on the right-hand side of the expanded image ruins the experience so much that I gave up. Is there some way to switch it off? I'd love to go back and enjoy the larger images this time!
Rob C
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Russ: Thank you so much for the compliment. Very kind words. Encouraging & appreciated.
Rob: ...are you referring to the fact that you must hover your mouse over the thumbnail to see an expanded image on my website ?
The original op question remains and I think it's one of 'privacy' rather than 'copyright'
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Very, very nice photography in all portfolios!
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The original op question remains and I think it's one of 'privacy' rather than 'copyright'
Absolutely. It has nothing to do with copyright. In the US, in general, if a person's in a place of public access or being viewed from a place of public access he has no expectation of privacy. There are limitations. If somebody's inside his house that fronts directly on the street and you're on a sidewalk outside, you have no business pushing the blind aside and shooting him inside his house from the sidewalk. There are some other limitations: you can't deliberately make somebody look ridiculous, though often it's the subject himself who's making himself look ridiculous. You can't misrepresent somebody's situation. For instance, you can't make a picture that implies a woman on the sidewalk at night is a prostitute. If she is, and if she has a sign around her neck, that's different. Most of this stuff is nothing but codification of common courtesy.
And it's privacy laws in other countries that can bite you. You need to research the local situation, preferably with an attorney, if you plan to shoot or publish in a particular locale.
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Thank you Slobodan.
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In Germany, and I believe in most parts of the EU, regulations are much more restrictive than in the US. Here you are not even allowed to take a picture of a person without his or her consent.
EU countries do not have identical rules about street photography. Finland, for example, is very unrestrictive, all public places like streets, shops, shopping malls and even restaurants (all places where a person can go freely) are public places where you are free to photograph whatever you want (but not necessarily publish). Shooting pictures of people inside private buildings and yards is not allowed, making paparazzo work bit difficult). Then there are countries like France where photographing people on the street is illegal (but generally not enforced, of course). In Italy it is illegal to photograph minors, etc... Using photos for news and similar purpose is always legal, but not for commercial use (advertising).
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I don't see what's so complicated about this. It more or less boils down to common sense. Make your intentions obvious. If someone seems not interested in being photographed - don't do it. If that person seems not to care or even gives you a smile, then go ahead. When to try to photograph someone stealthily you are potentially(!) in trouble.
The underlying ideas is the personal right that everyone should be able to decide on his own if and in what context images of his person should be published or not.
From what you've said, that's the situation in Germany. Happily, it's not the situation in the US. Street photography depends on catching people doing their thing when they're not posing for the camera, so it sounds as if Germany has put a stop to street photography. And it's not a question of being stealthy. Usually, when I make a street shot, the people I'm shooting are perfectly aware that I'm there, but they don't care, and usually don't notice that I've made a shot. It's something you have to learn if you're going to do street.
Makes me wonder what German newspapers and magazines do. Is all the photography in them posed?
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Then there are countries like France where photographing people on the street is illegal. . .
Thank Heaven that wasn't the case in HCB's day. He must be rolling over in his grave along with Kertesz, Chim, Doisneau, Ronis, Brassaï, Marc Riboud and others.
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Russ: Thank you so much for the compliment. Very kind words. Encouraging & appreciated.
Rob: ...are you referring to the fact that you must hover your mouse over the thumbnail to see an expanded image on my website ?The original op question remains and I think it's one of 'privacy' rather than 'copyright'
No, Frank, I'm referring to the last link you give - the Facebook one, and the spread of thumbnails in it looks fine. However, when I click on one, the image opens up large, but with it, comes another rectangular window with a lot of copy in it with comments; that second window seems stuck to the right side of the photograph, and there's no way to remove it - that I've discovered so far. For me, it's so distracting it ruins your qwork.
I have not been to the first link, the website yet, because I thought the reference to the images that were being discussed came from the 'Portfolio -1 Stories' and that would be a direct connection to that Portfolio.
Rob C
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Yes, facebook is %$#@& for showing photos & I cant do anything about it. There is an arrow to the right (& left) of the enlarged images which allow for navigation.
But I don't want to get off topic & it wasnt my intention to divert people to my work except as an example of the op question - am i infringing on privacyy rights with these photos or can I display, sell, publish etc
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From what you've said, that's the situation in Germany. Happily, it's not the situation in the US. Street photography depends on catching people doing their thing when they're not posing for the camera, so it sounds as if Germany has put a stop to street photography. And it's not a question of being stealthy. Usually, when I make a street shot, the people I'm shooting are perfectly aware that I'm there, but they don't care, and usually don't notice that I've made a shot. It's something you have to learn if you're going to do street.
Makes me wonder what German newspapers and magazines do. Is all the photography in them posed?
I wouldn't say the situation it's better or worse in either country. It's just a cultural thing. We put black bars over a pair of eyes, you put black bars over a pair of nipples.
Regarding the newspapers. Why would anything have to be staged? They usually aren't filled with candid street shots in the US either. What you won't find though are mug shots of suspects and convicts.
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Hi Fips, The black bars haven't anything to do with street photography. They're for people accused of crimes, to preserve innocence until guilt is proven. And hiding nipples is becoming less and less common as attitudes change. But I see candid shots from the street (a different thing from "street shots") in my local newspaper every day.
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Russ, I agree that the black bars in the two cases serve different purposes but nevertheless it illustrates the different priorities societies set for themselves. So, I just compared a few US and German (online) newspapers and I agree with you observation. More candid shots in the US one. However, they mostly serve no special purpose and are more or less just stock photography. Girl walking in front of school building, people in shopping mall, and so on. So from that I wouldn't say that the more restrictive laws have a negative impact on the quality of journalistic work.
Of course, you right that street photography can only be done in a legal gray zone in Germany. Most photographers working in that genre accept that fact and tend to work less offensively than say Mr. Gilden. Like this gentleman for example (http://www.siegfried-hansen.de/) (posted the link in another thread already).
Philipp
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Fips, I didn't say the candid shots that wind up in our newspapers are good. You're right: most of them are routine and boring. And I'd agree that the difference in restrictiveness doesn't harm the quality.
And don't get me started on Bruce Gilden. You can see my opinion of the man's technique at http://www.externalconnections.info/Articles/OnStreetPhotography.html. As far as I'm concerned, Gilden's not a street photographer. He may be a photojournalist, but he's also a pest, and, considering how he hassles people, as I said in the article I'm always surprised to find he's still alive. As I said, don't get me started. . .
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This is not legal advice it merely sums up my findings thus far:
In my limited research (google & photography forums rather than formal legal counsel) around the question of privacy laws (not copyright or ownership issues) in ‘street photography’ it seems that Canada is more conservative than the USA, UK, SA or Australia. The classic photography genre is not alive & well here.
The question arose to find out if it is ok to sell in a gallery, or self publish a portfolio book, images made in public places where a person is recognizable, is not aware of being in the picture, and has not given consent (written or implied). The person may not necessarily be the main feature, large in the frame, as one would expect in a portrait, but nor are they merely incidental passers-by either. Their presence fulfills the artistic intent of the image.
In 2010 the Quebec supreme court handed down a ruling which only makes it ok to make images of people on the street if it is considered newsworthy. See the link below for a description of the scenario.
Ben Evans on photo.net posted:
“Under Canadian law, generally speaking, commercial, editorial and artistic are the same thing. It doesn't matter if a photo is published in a newspaper or hung in a gallery and it doesn't matter whether or not the photographer uses the image for monetary profit.
It is legal to photograph people who are in a public place without their consent. It is legal to publish their photo without obtaining their consent if the photo covers a newsworthy event.
However, it is NOT legal to publish (in the media, a gallery display, a personal blog), without consent, the image of a recognizable person who is the main subject of the image if the image was not taken to record a newsworthy event.
Example: You take a photo of a clown who is entertaining children in a public park. The clown is the obvious main subject of the photo but a group of children who are being amused is visible in the photo. You can publish or display (commercially, artistically or editorally) the group photo without the consent of the clown or the children (i. e., their parent). If you crop the photo so that only the clown is recognizable, no consent is required because he was performing publicly and the event is " newsworthy" and he wanted to be seen. Since the children are incidental to the photo, you CANNOT publish (or display in a gallery) without consent, a cropped photo that is essentially a portrait of one or several of them.
A few years ago, the Supreme Court of Canada handed down an important decision in this area. A photographer was taking pictures of a public demonstration. He noticed a young women sitting in a nearby doorway. His portrait of the woman was later published in a magazine. She sued and won because she was not depicted as the main subject of a newsworthy event or even as a recognizable onlooker of that event but as a private individual present in or observable from a public place.
The following link (in French) covers the essentials of privacy rights that affect photographers in Canada:
http://www.francisvachon.com/blog/le-droit-a-l’image-au-quebec/
He goes on further to say:
“The linked article is specifically about Québec but much of the information is applicable to all provinces. The author is an experienced news photographer.
Here's a link to the English version of the related Supreme Court decision:
http://csc.lexum.org/en/1998/1998scr1-591/1998scr1-591.html
"The respondent brought an action in civil liability against the appellants, a photographer and the publisher of a magazine, for taking and publishing, in a magazine dedicated to the arts, a photograph showing the respondent, then aged 17, sitting on the steps of a building. The photograph, which was taken in a public place, was published without the respondent’s consent. The trial judge recognized that the unauthorized publication of the photograph constituted a fault and ordered the appellants to pay $2,000 jointly and severally. The majority of the Court of Appeal affirmed this decision."
Then the Supreme Court went on to uphold th lower courts' decisions (5:2), based on the Québec charter of rights, for the following reasons:
"In this case, the appellants are liable a priori, since the photograph was published when the respondent was identifiable. The artistic expression of the photograph cannot justify the infringement of the right to privacy it entails. An artist’s right to publish his or her work is not absolute and cannot include the right to infringe, without any justification, a fundamental right of the subject whose image appears in the work. It has not been shown that the public’s interest in seeing this photograph is predominant. In these circumstances, the respondent’s right to protection of her image is more important than the appellants’ right to publish the photograph of the respondent without first obtaining her permission."
Since no similar case in another province has reached the Supreme Court, whether the ruling applies elsewhere is not clear. However, one of the justices mentions in passing section 8 of the federal charter (unreasonable search and seizure). He raises the possibility of making an argument that would make publishing (but not taking) a photo of a person without permission tantamount to an illegal seizure since a person's right to privacy and "inviolability" (section 1 fundamental right) applies to some extent even in public places.
The woman was awarded damages in the amount of $2,000. Ironically, anyone can now publish the picture because it was received in evidence before the Supreme Court and by law is now in the public domain.
If I was in another province, I would play it safe and assume the Québec-based ruling applies since that is the most likely outcome when the Supreme Court finally rules under the federal Charter or the laws of other provinces.
Here' a link to the law in Ontario with some refs to other provinces:
http://ambientlight.ca/laws/overview/what-can-i-publish/
Even in the absence of a specific privacy law in a particular jurisdiction, anyone who thinks they have been physically, emotionally or financially harmed or their reputation has been harmed can sue you. Even if you prevail in Court, the experience could cost you a lot of money
The last sentence is the bottom line:
Even in the absence of a specific privacy law in a particular jurisdiction, anyone who thinks they have been physically, emotionally or financially harmed or their reputation has been harmed can sue you.
Here is a separate link to a privacy law blog but it doesn’t throw much more light on the subject except to suggest offering subjects the right of veto. That I would cease & desist if necessary- http://blog.privacylawyer.ca/2010/04/some-thoughts-on-street-photography.html
And here is a link to a downloadable brochure outlining photographers rights in Ontario -
http://ambientlight.ca/laws/printable-laws-pamphlet/
So what is the answer to my original question whether I can display, sell, publish my ‘street photos’? There isn’t a clear cut definitive answer. It’s open to interpretation. In general it is not illegal to make the photos, but it is to publish them, if the subject feels harmed. Mostly people will probably not mind if they don’t think I’m up to using them in a negative way. Hopefully the seriousness of my work and it’s artistic integrity will be sufficient to allay fears and make them willing participants in my art projects.
There are so many great photographers in the history of ‘street photography’ that would not have been able to function & produce their work under these circumstances – Henri Cartier-Bresson, Andre Kertesz, Robert Frank, Garry Winogrand, Helen Levitt, William Klein, and many, many others.
What to do…….mmmmmm. If anyone has more to share please let me know.
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I'm not very familiar with the laws about this. But I think that if the work is used for editorial purposes (not making money or promoting anything) then it should be okay. Again, not too sure I would hire or consult with a professional with knowledge on this subject.
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