'street photography' & subject privacy rights

Discussion in 'Street and Documentary' started by frank_gross, Oct 5, 2012.

  1. 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 'documentary' / '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?
     
  2. http://www.rcfp.org/photographers-guide-privacy
     
  3. Steve's first link, concerning government restriction on shooting photos, should be of great interest to photographers in the field but has nothing to do with the private privacy rights of individuals shown in photos.
     
  4. I know one day I'm going to be arrested...and I'm a lawyer, too.
     
  5. 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
     
  6. I know one day I'm going to be arrested...and I'm a lawyer, too.​
    What doe's being arrested have to do with civil actions concerning invasion of privacy?
     
  7. What does being arrested have to do with civil actions concerning invasion of privacy?​

    Absolutely nothing here. I assume it's the same for you.
     
  8. John H. "Steve's first link...has nothing to do with the private privacy rights of individuals shown in photos."​
    True. Sorry. I should have made it clearer that while it does not specifically touch upon privacy rights, I thought it might be of peripheral interest in regard to recent decisions on what photographers in the USA are permitted to photograph in public areas, etc.
    Frank -- I looked at your website and FB page. (I don't feel obligated to comment, but I would like to: engaging, subtle, consistent, good use of color...something I rarely see in SP.) I would try to find out what privacy rights (in regard to being photographed) are in Canada. Most of your photographs appear to have been taken in public areas. You have one image that appears to look down through a window into some type of waiting room? I might be a little concerned about that one depending on the context. Overall, however, I don't see anything that would give much concern for artistic or documentary use in the US. But I am not at all familiar with Canadian law. Let's see what other people have to say. I am not a legal expert on these matters. If you are the this concerned, the best course of action would be to get an expert legal opinion before proceeding. I doubt that you will be able to cite the opinions expressed in this forum in a court of law. ;-)
     
  9. 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/
     
  10. Steve: Thank you for the compliment & kind words. Encouraging & appreciated.
    Ben: Wow this sounds definitive. I get your explanation and examples. So 'newsworthy' is the key.
    I will try and get your link translated. Is it French because the law is provincial ie limited to Quebec, or is it Federal ?
    According to what you've said none of my images can be legally be hung in a gallery, or self-published as portfolio book, as they're all my intent as 'an artist' rather than my recording of a newsworthy event.
    Please take a moment to look at the links to my work that I provided in this thread and see if you concur 'with that ruling'.
    p.s. are you a lawyer?
     
  11. Ben's post was a real eye opener for me. Unless I am way off base in my understanding of US law, it sounds as if Canada is much more restrictive (from a photographer's standpoint) in terms of how a photograph taken in a public area may be used.
     
  12. I agree. If Ben is right it is not the answer I was hoping for. Awful really. Considering all the legions of street photographers in this and the past century from Kertesz & Cartier-Bresson to the many modern masters working at Magnum & other agencies I can hardly believe such a ruling.Most of them are photographing life as it unfolds which are not necessarily newsworthy events.
     
  13. Hi Steve. I'm not a lawyer. 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.
     
  14. "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"
     
    Wow, best to deny you have ever taken a "street photo",or, ever seen one. Best to deny you have ever associated with anyone who has taken a street photograph.
     
    Hey, today you could be sued...tommorrow, a knock on the door in the early hours of the morning
    Just a thought.
     
  15. Wow, best to deny you have ever taken a "street photo",or, ever seen one. Best to deny you have ever associated with anyone who has taken a street photograph.
      Hey, today you could be sued...tommorrow, a knock on the door in the early hours of the morning​
    "Allen who? Jeff who? Brad who? Frank Gross? Never heard of any of them. Photo what? Nope. Never heard of that either."
     
  16. Even if you prevail in Court, the experience could cost you a lot of money"​


    Why? Surely you could just turn up in court, wait to hear that there is no judgement against you then walk away.
     
  17. "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."
    Ben:
    I am in Ontario so i was keen to find the answer on this link - it is relevant but the laws in Toronto are still open to interpretation and as you say it depends on what the person feels they have 'suffered' by being shown in a photo.
    Overall, the situation is not heartening. The great tradition of 'street photography' is not alive & well in Canada (Toronto, Ontario). It seems that we have surpassed our neighbours as a litigious society.
    Under these conditions, is it worth doing this type of photography here? Probably not.
     
  18. Ben:
    I posed my original question on facebook and other photo forums too (besides this one) . Do you mind if I reply and quote some of your links and reply.
    I think what you've contributed puts the issue to bed as best it can be done.
     
  19. SourceURL:file://localhost/Users/frankgross/Documents/privacy%20laws%20in%20canada.doc
    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.
     
  20. Each time I go out with my camera I encounter street photographers. It seem to have caught on bigtime in the last year or so. Especially with the instagram and iphone craze. Everyone and his brother are photographing people in cafe's restos. pubs, stores, subway. I.e. public places. They end up on flickr or Instagram. No doubt some of the more artistic ones will end up published on the net or sites dedicated to the art of the cellphone. How will it all be policed, unless someone sees their image and makes a complaint, I'd think. And this is above the dslrs, rangefinder, smedium format, point n shoots etc.. that I see all the time. I still shoot people, when they object I put the camera down. Does publishing photos to flickr count as public exhibition? Certainly I'm not making money from this so commercialism is not an issue.
    I am Canadian, Montrealer.
     
  21. Ah yes! I forgot you were from Canada, Marie.
     
  22. Yes, I read the French version of that legal issue too :)
    I guess it just means getting a legal waiver before publishing anywhere where remuneration is involved. I don't think the issue here was as much on privacy as it was on money. Maybe better to settle with the subject before going to publication where money is involved anyway.
     
  23. The Quebec case was wrongly decided and I am very surprised that it held up on appeal. The judge created a new right, a right to protect one's 'image', and created a right to privacy while in public places. The ruling has no basis in law. It certainly hasn't stopped me from doing street photography in Quebec, though I get a lot more challenges now. If someone wants to sue me, they can try. But they can't make me destroy my images, and neither can the police if they're called.
    This new right of protection of one's image could be used to dispute any criminal conviction resulting, even partially, from surveillance cameras. I don't expect this new right will survive all that long, even in a climate that is somewhat hostile to photography.
     
  24. Very strange Jody. How can someone (your judge in the above post), create privacy whilst out in public? That defies logic.
    I'm in the US, so it's a lot simpler here, I think. If you're in public, the courts have ruled that there is no expectation of privacy. Hence, if you are standing on public property, you may photograph to your heart's content. It's fine to display or sell those photos because they were taken in public. No signed releases needed. I think our courts got it right on this one. I'm pretty sure that it also means that if I'm standing on the street and someone standing in their yard objects to me taking their photo, they will just have to live w/ it or go inside. That's what the police have told me anyway, but you know how that goes.
    I remember once at a street fair, a vendor had a huge sign stating NO PHOTOGRAPHY. So of course I had to go over there and take some pics. He was irate and demanded that I delete them (in a film camera yet), while I calmly explained to him that we were in a roped off public street, and his sign meant nothing. He thought that because he had rented his space, he could then start his own little kingdom I think. I walked over to the nearest cop, and we both explained to him that he could keep his sign, but couldn't enforce it. Most of my cop stories don't end this way :)
     
  25. Spearhead

    Spearhead Moderator

    Hence, if you are standing on public property, you may photograph to your heart's content.​

    While technically this is true, it doesn't mean you can use the photos, even as news or public interest. The reason is that if you photograph people who have a reasonable expectation of privacy, such as people inside a restaurant that you are shooting from outside, those people do have a reasonable expectation of privacy. These distinctions are important.
    a vendor had a huge sign stating NO PHOTOGRAPHY. So of course I had to go over there and take some pics.​

    Sounds obnoxious.
     
  26. It all depends on what legal jurisdiction you are in.
    There was a UK court decision this year which held I think there is a common theme: That if a person is in a public place they surrender their rights to privacy.
     

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