Taking photos is unwanted touching?

[Ivophoto]

Hm,...

https://petapixel.com/2018/07/30/taking-photos-without-consent-is-like-unwanted-touching-sf-street-fair/

[Eric Myrvaagnes]

Note that photographers seem to be winning the vote (at the bottom of the article.)

[RSL]

It's a tragedy. In the fifties I used to love doing street photography in San Fran. Now I'd have to wade through the needles and poop on the sidewalks to get my shot.

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.

[Slobodan Blagojevic]

It will be rather hard to comment on what appears as a purely photography subject without wading into the politics behind it. It has all the necessary ingredients (a.k.a. “hot buttons”): #MeToo, feminism, political correctness, media suppression, etc.

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).

[Bart_van_der_Wolf]

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.

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

[amolitor]

There are two quite separate issues in play here.

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.

[JoeKitchen]

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. 

[Jim Metzger]

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.

[Slobodan Blagojevic]

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.

[John Camp]

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.
 

[Alan Goldhammer]

From a historical perspective I wonder when things changed.  Did Diane Arbus or Robert Frank get signed model releases?

[Ivophoto]

I don’t know if there is specific European legislation or if it is still a national matter.
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.

[RSL]

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.

[RSL]

If you want a pretty thorough rundown on the law in the U.S., go here: http://www.krages.com/phoright.htm

[Alan Goldhammer]

Of course not, Alan, but they weren't using their photographs for advertising.

So any other commercial use other than advertising is OK?

[JoeKitchen]

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. 

[RSL]

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.

[RSL]

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?

[KLaban]

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?

[32BT]

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.