Release required for public settings?

Discussion in 'Casual Photo Conversations' started by mickeysimpson, Jul 15, 2020.

  1. What are the customary steps one must take in order to copyright and publish of people in a public setting? For example, if I were to take pictures of people on a public sidewalk, am I required to get some sort of release?
     
  2. i believe the United States Supreme Court ruled that anyone in a public place can have their image taken at any time by any one, and that it can be used without permission UNLESS they ask each individual person.

    IE,,, if you go to a public store, and there is a news crew doing something for the evening news and they get you in the background,, you have no option out..

    However, if your walking on the street and take photos of someone who doesnt like that, and they say stop it.. you have to stop it.
     
    mickeysimpson likes this.
  3. A perfectly clear and concise answer. Thank you!
     
  4. William Michael

    William Michael Moderator Staff Member

    The first step is to understand (generally speaking) -

    Permission to Photograph; Copyright; the Rights to Publication; Release from the Subject(s) or the Owners of Objects being photographed - are all different.

    Secondly, note that all these rules will be different, depending upon the Jurisdiction in which you are located.

    As an example of point 1: Whilst a particular law may allow for the act of photography in "a public place" other laws may not allow for publication of that photograph.

    ***

    Because you wrote “sidewalk” I’ll take a stab and assume you’re located in the USA. In this situation, then, and concerning only your example, I think whilst I am not au fait with all the details of the laws there this would be a reasonable guideline:

    1. you the Photographer have Copyright from the moment you release the shutter. (I think there might be some odd situations where the contractor or employer might have Copyright if you were hired or employed, but I further assume this not is your situation).

    2. publication of the images may be a different kettle of kippers, depending upon whether the images are being used for commercial purposes and I think one key point would be if the Subjects were to be assumed to be endorsing a particular Product or Service.

    ***

    So, as far as your question seems to imply and you’re meaning general photography on public sidewalks of the USA and not for publication for commercial purposes – then you’re OK.

    I think that, in the USA the basic premise for that being OK is: there is no expectation of privacy in a public place.

    There are some legally qualified folk here on PN as well as many gifted and experienced USA based Street Photographers - if you’re lucky they will chime in.

    WW
     
  5. William Michael

    William Michael Moderator Staff Member

    Not sure that's concise, or precise. Care to cite the ruling, please?

    Additionally, define "a public store" - surely "a store" (meaning a shop) is not the same as "a public place"?

    WW
     
    Tony Parsons likes this.
  6. OK, so let try to refine my position and the kind of photography that am interested in; as well as, what I may intend to do with the resulting photos. I do understand that copyright is different than a model's release. Having said that I thought that ownership and right to publish went hand in hand with my copyright.

    Yes, I am in the US. Monmouth County, New Jersey to be precise.

    1) I am currently an amateur photographer but may elect to sell my work - that is if anyone is foolish enough to part with their money. I do not intend to undertake commercial photography for any 3rd party now or in the future; no contractor or employee relationship whatsoever.. I am too damn old to associate with any business other than me..
    2) The type of photography I referred to initially includes people in public places, not stores / shops or businesses. Venues include locations such as streets, sidewalks, the beach, public parks and any other public setting where people gather and socialize and have no expectation of privacy.
    3) I have already encountered individuals that objected to having their pictures taken and have discarded the photos.. .
    4) I am unclear if commercial purposes includes my selling copies or if that means any relationship where money and photo are exchanged. I would be open to a publication that wants to buy/pay to use a photograph.

    I hope that helps clear up where my head is at. If not, let this old geezer know and I'll gladly accommodate additional questions..

    Mick
     
  7. Bert P. Krages - Attorney at Law

    This is the pdf file and book that is used in 90% of all articles about this question.

    To make it the simplest, and the easiest.

    public places are anywhere the general public may go. that includes stores, restaurants, sporting arenas, and so forth. That means if you are at walmart, costco, subway, in the actual subway, the street, the city park, the public beach, then you may take photos.

    there are some general rules.


    1. do not be an asshole about it. If you are at the beach and are taking photos in the general direction of say a party, and someone from the party comes over and asks you to stop taking photos. You are generally supposed to stop taking the photos of them.

    2. If you go to the skate park and are taking pictures of people on skate boards and the like doing tricks, you CANNOT take photos of them and then try to submit the photos to the companies that made the gear that was used WITHOUT permission of the people in the photo. That is called "using a persons likeness for monetary gain without permission"

    3. If you are in a public place and they have signs that say "no photos" you cant take photos. If the restaurant manager comes over and says "stop" your supposed to stop taking photos.

    4. Bathrooms of any kind are off limits. Even the people who take a bathroom selfie of themselves and their "amazing or monumental bathroom moment" are not supposed to be doing that. The same applies for changing rooms and doctors offices.

    5. any area where a person may feel the reasonable thought of "its a private area" means you cant shoot. What that means is....

    a if you are looking into someones window and take a photo,, you have a problem
    b. if you walk around the department store and stick you camera up young ladies skirts hit firing the shutter,,,, you have a problem
    c. If you stick the camera above, under, or through a hole in a wall or fence or door in order to take a photo, you have a problem.
    d. if you have to turn your lens up to 600mm and stand on the roof of a 20 story building to look into windows, balconies, porches, or over fences you are in violation and have a problem.

    the general concept is that, if you need to take any special action to see it, you have a problem
     
    movingfinger and mickeysimpson like this.
  8. William Michael

    William Michael Moderator Staff Member

    Note well that the file cited above is a commentary only the Photographer's Rights to take photographs and other associated matter directly related to taking Photographs.

    WW
     
  9. Or, in manuscript shorthand, NB, for Nota bene! :)
     
  10. Excellent reply Bert.
    Thanks Bert. All good stuff.
     
  11. im not bert the lawyer, thats just a link to HIS material. it is up to date and he is considered the daddy of photography and the law in the eyes of the people who write articles on it
     
    Charles_Webster likes this.
  12. When I started my business, I did so with a paid consultation with a lawyer. I found that a good way to help establish practices that I was comfortable with, since I was able to address my own individual needs and ways of doing things, tailored directly and specifically to the type of business I was going to run. I would never have considered, nor would I today, asking legal business questions on an Internet chat board of similar business types with no legal training or experience.
     
  13. I get your point regarding solicitation of legal advice from a forum such as this, or any public forum for that matter. I was hoping to get some response that could be useful until such time that I decide to move in a direction where I might start to begin taking photos of public gatherings; that would be the point at which I actually require legal consultation. As it stands now, I am an amateur that avoids taking pictures of people in public places and I do not sell my work. Thank you Sam Stevens, and all.
     
  14. Having read through the above this appears a general mix of good, bad and odd information. (PS: tommarcus might be well served to learn the difference between 'your' and 'you're' before dispensing further legal advice.)

    As a photojournalist working in the US, my understanding is that there is no reasonable expectation of privacy in a public place. So you are allowed to photograph people, places and things on public property. It also is actually lawful to photograph private spaces that can be seen from a public place (eg. into a private yard or even through a window into a private space that can be freely seen from a public sidewalk or road). Of course, there are gray areas with nuances and exceptions. Some of those things might fall under federal law (copyrights, trademarks, likeness, right of publicity, etc.) some might be local (peeping Tom laws). For instance, you might be within your rights to photograph Julia Roberts on a sidewalk in NYC but you might not have the right to put her face on merchandise and begin selling it. You cannot stick your camera up a woman's skirt in a public place. And while it might be totally legal for you to go to a park and photograph random children, for instance, this might make people very uncomfortable and stir trouble. So you should always use your best judgment. Of course in the USA one can be sued for anything, regardless of whether the plaintiff has the law on their side or not. But one also shouldn't conspire with their own fear and worry about the legality of everything.

    If you plan to commercialize your work in any way, say, offering images shot in public places to stock agencies, you might need releases for people who appear in the images. There has also been case law for situations in which a photographer has gotten into trouble selling prints of pictures they made of public artworks.

    Privately owned spaces are, of course, a different matter. And that includes spaces that appear to be public (like the outdoor areas of Rockefeller Center, for instance). Or maybe a shopping center or mall. There some exceptions in this area too. For instance, some local laws provide additional access to journalists to make images and video in private places when first responders are on the scene as there is a public interest in what is happening. Many years back I was covering a fire on private property and the private security tried to have me removed. But as long as the police and/or fire department are present I had a right to be there as an accredited journalist. That doesn't mean that I haven't been threatened, intimidated, screamed at by all manner of people: business owners, victims or perpetrators of crime, first responders, etc. In 2020 Americans are hyper aware of and uneasy about cameras. Cameras can be very powerful.

    In my work as an independent film producer, there were times when it would have been impractical to get releases from everyone who appeared in our shot...say at a restaurant or winery where we might be filming. In those cases we'd put signs up – in conspicuous places – at all of the entrances, which warned people that filming was going on there and that by entering the area they gave their consent to be filmed. So there may be other mechanisms that might unburden you from having to get releases for everyone.

    Lastly, never hesitate to seek legal advice from a local attorney who is better equipped to advise you on your legal rights and responsibilities as it relates to the kind of photography that you want to do.
     
  15. Super response Christopher! Thanks.
     
  16. I live in NL and I have no special understanding of photography laws. As far as I know US laws are broadly similar to those in NL. One difference is that stores, public buildings, etc are considered as 'private property' here. Photography is not allowed unless either explicitly allowed (most museums, art galleries) or permission has been obtained by the owner/manager. Who very rarely give it! Though they have no legal basis, these Wikipedia pages seem to give a good overview:
    - Photography and the law
    - Personality rights

    In NL - as do some US states - a distinction is made between:
    a) the laws governing where people can and cannot reasonably expect privacy from having their photo taken (and perhaps published), and
    b) the rights of individuals to control the publication of one's image, likeness, etc. sometimes referred to as 'portrait' or 'personality' rights

    In NL, 'portrait rights' are sometimes claimed in cases where private citizens object to having their 'portrait' published without their permission. And when 'public figures' claim that their 'personality' or likeness is misrepresented in a photo. In the US 'personality rights' seem to vary between states (see Wikipedia page).

    In NL, a rule of thumb for street photography is that 'public scenes and situations' showing multiple people are pretty safe because because there's no intention to take a 'portrait' of any one individual or group. They just happened to be in the scene/situation at the time. Publication of photos that deliberately focus on 1 or 2 recognizable people without their permission is (in principle) liable to be challenged. These days, 'publication' includes digital platform too.

    Especially during our 'lockdown', I took photos of people and small groups in public places too. I got into the habit of asking their permission first, giving them my e-mail address and telephone number and promising that I'd send them a copy of photos if they requested it.






    .
     
    movingfinger likes this.
  17. I too, when I ask to take a photograph of someone in a random street encounter, offer to provide a digital copy if given contact info. Many of my subjects are appreciative of this.
     
    mikemorrell likes this.
  18. I'm sure you've found - as I have - that communication breaks down a lot of barriers and mistrust. Just explaining what it is that makes you want to take a photo and offering people a copy helps a lot in developing more trust and willingness. Up until now, I've never been refused. I often hang around long just enough for people to get bored with 'posing for the camera' and just get back to whatever they were doing. Or I take a photo 'on the sly' and then explain afterwards and ask their permission (with the offer of a copy). If they object, no problem. I show them that I've I've deleted the photos and apologise for the inconvenience.

    To me there's a world of difference between photographers who manage to get the cooperation of their subjects an photographers who (often with a long lens) photograph people without their knowledge.

    But I honestly don't know how this works. In the UK, Martin Parr is famous for publishing unflattering photos of his fellow citizens. In the US, Bruce Gilden has been called an 'aggressive' street photographer, though in a couple of videos shot in the UK, he seems quite prepared to discuss his photos with his 'subjects'.

    I find it hard to believe that the subjects of either Martin Parr or Bruce Gilden (or many other street photographers) agreed to the publication photos in which they appear. So my guess is that under the photography there is an awareness of 'in which situations are "people photos'" fair play and also a legal team that
    can defend this as necessary.


     
    movingfinger likes this.
  19. I haven't been so fortunate. I have on occasion been told by potential subjects, no, that they don't want to be photographed (even if offered a copy). In such cases I respond with "Thanks anyway, that's why I asked, I didn't want to do it without your permission".
     
    mikemorrell likes this.
  20. A friend just today emailed me this link to an opinion article that much of street photography is "bad and exploitative". It could be the start of a new thread but it fits here reasonably well, as it discusses legal issues briefly too. Anyway, I offer it for your consideration. I agree with the author's view, although I must admit that I am not completely without sin in this regard.
     
    mikemorrell likes this.

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