Ethical dilemma

Hi,

 

I have posted a shot (profile) of a man sitting on my side during a boat ride.

I was interested in the pattern of his hair and two beads he clipped on his

hairlocks. To make the picture (more importantly, the decorated hair) as

natural as possible, I did not take the man's permission but clicked on an

impulse. Is it right to post such a shot? What problems may I encounter?

 

Thanks,

 

Samrat.

Hi Samrat, a much asked question and the financial question is the only grey area, which has been noted above. I love taking candids and have posted on forums many times. Most of the shots I have taken have been without the subjects permission or knowledge. If I`m "spotted" I`ll approach the person and offer to delete or email a copy. Not many deletions and have made a few friends along the way. Stay shooting! Gill.

You should have the right to shoot and display any image you choose so long as you do not violate your country's security laws or the laws against child pornography. Making money off the shot is another matter altogether.

Hi Samrat,

personaly I would ask the person for permission. If that's not possible I would decide on the basis of the question if the photo is somehow offensive for the person on it (pose, scenery, or whatever). After all it's somehow in a grey zone.

Art wrote, "You should have the right to shoot and display any image you choose so long as you do not violate your country's security laws or the laws against child pornography", but he's wrong, at least in Germany. You violate the personal rights of a person when you display his portrait without his permission. The exceptions are (1) if he's a person of public interesst (2) if he's shown in public in a group of at least 5 persons.

As noted by both Art and Stefan - the laws vary from country to country. In the US, it comes down to 'commercial use' and (often ignored) holding a person up to ridicule or otherwise defaming them. Possible exceptions to the latter for 'famous' or otherwise 'public persons'. Bottom line in the US, if you sell or make money from the image of a recognizable person, you should also have a signed model release. Any other use is generally safe.

 

In the US, the laws regarding this are civil, not criminal. That means you don't risk arrest, you risk being sued (and losing) if you use an image of a recognizable person commercially without their permission (or defame a person). The definition of what is 'commercial' is somewhat up to interpretation.

 

Asking permission means nothing in a court of law, unless both parties agree to what was asked and what permission was given. Obviously, if the guy is suing you, he's not going to agree that he gave you permission - so asking is basically worthless. Get a model release in writing or don't bother - it means nothing.

 

IANAL, this is not legal advice.

"Commercial use" has been defined as broadly as "viewed by anyone other than the subject or the photographer".

I agree with Edward on this. Various courts have applied different meanings to 'commercial use'. A fairly notorious recent case involved a photographer who took surprise photos of people on the street, then made prints and sold them at a gallery. He was sued by a person who objected to his photograph being taken on religious grounds. The photographer sold ten copies of the print of the person who objected at between 20,000 and 30,000 dollars each.

 

http://www.nycourts.gov/reporter/3dseries/2006/2006_50171.htm

 

The case was dismissed - the court held that this was not 'commercial use' for a variety of fairly narrow reasons. In other words, a similiar case might prevail, if for example the photos were in a book or if the exhibition were in a musuem and a large number of prints sold.

 

So yes, as Edward said, the interpretation of 'commercial' is all over the place - at least in the USA.

 

IANAL, this is not legal advice.

Samrat,

 

you realize that the person in your shot is almost unidentifiable, right?

Samrat, since you posed this as an "Ethical Dilemma," I wouldn't think you're as much

concerned about legality as you are your own comfort and ethics. In which case, really no

one can answer but your own heart. What will let you sleep at night? My own conscience

pretty much allows me to use people's images that are in public as I see fit. I have limits

which not everybody will have nor will they agree with nor do they need to. It's just what

lets me be comfortable. For instance, I think there are many important photos of homeless

people. I think homeless people should be seen and known. I rarely take photos of

homeless people, though, because many photos of homeless, I find, are exploitive. They

are in the mode of "look at them" instead of "see them." I hope you understand that

difference and everybody has their own understanding of when a photo is "using"

someone and when it is either respecting or getting to know or expressing something

about someone. (Many will say all subjects are used, and that may be so but to varying

degrees and with varying sensibilities.) I think the homeless are too easy a mark to elicit

what I consider to be false pathos from viewers. Some of these photos create a mood, but

look right past the actual people. My opinion only and one of my few limits when it comes

to my own subjects.

This is to thank all of you...Art, Will, Stefan, Wigwam, Frank, Edward and Fred. Your different ways of looking at my question certainly cleared a lot of doubt I had. There were even some subtle points I did not consider and some rather important ones (like the situation in Germany with regard to such shots). I have greatly benefitted from your input and will be, as Fred said, able to "sleep at night" as ar as this is concerned. Thanks once again.

>>> Various courts have applied different meanings to 'commercial use'

 

Really?

 

Please list some of these "various courts" decisions where the outcome differed from the

outcome of the Nussenzweig/DiCorcia case - ie no commercial use.

HOBO?!

Unless they're doing something private, I see no reason why not. However, some good portraits of random people you have to ask them just to get them in the right spot, or if they're someone who might get mad at you, like a hobo.

In the US, "commercial use" has little to do with making money from an image. It's normally interpreted as use in advertising (or "commerce").

 

If you gave it away and it was used in advertising, that would likely still be considered "commercial use".

 

If it's "art" and you sell it and make money, that does not usually constitute "commercial use".

 

You can pretty much post anything (legal) you shoot on your website or on photo.net without getting any form of signed release or prior permission from the subject.

 

Your only concerns might be invasion of privacy (if the subject had a reasonable expectation of privacy, such as someone in their own bedroom or in a changing room at a store) or defamation, if you posted a picture of someone and inaccurately titled it "convicted drug dealer".

Brad, it might have been better had I said that different courts have defined 'commercial' differently. No commercial use is no commercial use, I get that. The question argued in the case I cited was whether the use described was 'commercial use', not whether commercial use is permitted. Sorry for the confusion, my mistake.

Those of you who are in the United States might wish to peruse this pamphlet

 

http://www.krages.com/phoright.htm

 

The gist of it is that if a person is on public property, and provided that they do not have a reasonable expectation of privacy(such as a medical facility or restroom), they essentially have no legal grounds to object to a person taking their photo.

 

Please note I said, though, taking their photo. As is being discussed here, though, how the photo is used may be a different matter.

 

Also, keep in mind that on private property, pretty much all laws are off regarding the right to take photos.

The DiCorcio decison is extremely narrow and depends on the circumstances of New York law. It doesn't establish any precedent or necessarily clarify anything. One need only glance at the privacy and publicity provisions of different states civil codes/laws to see that they are different.

 

It wouldn't surprise me if the parties "defending" the photographer/gallery, etc., spent more on the defense than they made on the "art."

With a cold beer in hand, a bratwurst on the BBQ, and a sunny day, it doesn't seem quite that bad to me. A little Joe Ely on the radio and things don't hurt quite so much.

 

Things get worse until they get better. Then they get worse again. I drink my beer and take pictures of things I find interesting. Occasionally, I scratch something that itches. And so it goes...

Well, that seemed out-of-place. I was responding to something that no longer exists. Sorry.

I thought that this forum was "loosely moderated" :)