Must you ask your subject BEFORE taking their street portrait? After? Or not at all?

[jordanazeldin]

This is an ongoing practical (people do sue in this country) and philosophical

debate: as a photographer, do you have the right to take someone's picture

without them knowing if you have the intention of exhibiting it or selling it?

 

There are so many "decisive moments," in which the picture MUST be taken or the

image as you saw it will be lost forever. Do you stop and ask permission before

you take the shot? After? Or not at all...?

 

I do a lot of guerilla-syle subway photos without the permission of the subject

(as did Walker Evans) and I'm torn about this one...

 

Thanks for reading.

[ian_tindale]

Which country is "this country"? The one I'm sitting here reading this in?

[jordanazeldin]

In America. New York City, specifically. I guess the "legal" argument is only one part. The philosophical argument of getting the shot for art's sake (thereby stripping the subject of his rights, in a way) is another more complex piece of the debate I think.

[christopher_graham1]

The legal aspects I may not know a lot about but I believe the idea is that if they are in public they are fair game. I don't really understand how all that works as I believe there was a ruling that said that people own the rights to their image. Famous people tend to trademark themselves. But they get their pictures taken all the time and they are printed and sold all over. So I am a bit muggy on the legal issue in America on that.

 

Thing is philosophically if you ask permission you are really just taking a portrait right. It really isn't all that street portraity. You aren't capturing them in their everyday walk you are capturing them as they want you to see them knowing what you intend. However, some people are touchy about that and can be violently upset that you have taken their picture. In my opinion it is better to take the picture and explain yourself later. I would explain myself though. Imagine walking into an art gallery and seeing a picture of you tripping over the last step on the bus. Or going into an art store and finding a picture of you and your spouse walking along a beach with a price tag of $1500. Wouldn't those situations bother you? If nothing else how are they selling a picture of me when I haven't seen any profit from it. Not explaining it or talking with people about what you are doing is what gets you sued. "I had no idea until I walked into that gallery" is not a phrase that a judge will look kindly on I wouldn't think.

[jordanazeldin]

hi chris. thanks for the thorough response. Yeah, i'm a bit confused about american laws about photographing someone without their consent: those images of britney spears sans panties, for example. I didn't hear anything about that photog getting slapped with a lawsuit....

 

i've thought about carrying model releases around in my pocket, actually. that way i can get the shot, let them know their pic has been taken, and ask if they wouldn't mind signing a release. thoughts?

[Matt Laur]

Much of this comes down to whether the images are being used in a news/editorial capacity (say, a picture of a celebrity in a newspaper), or whether they're being used commercially (for advertising/promotion, etc). Fine art (hanging in the gallery) type use always seems to be the big gray area. But if you're using a non-released image from the street as part of promoting your work (say, on your web site), the subject of that photo certainly has a legal bone to pick with you. Or, that's what I WOULD say, except I'm not a lawyer.

[jordanazeldin]

matt, your post brings up another interesting question of "space." Tangible building gallery space is one kind of space, but some would argue that the world wide web has of late, taken on more and more of the characteristics of a real place that people can "visit" as they would visit a gallery, museum, etc. If my website is a "gallery" site as opposed to a promotional money making site, would you then say it's as legit as a fine art gallery space?

[ian_tindale]

I feel terribly uncomfortable taking pictures of other people in public. I'm far more at ease if I'd asked and received a positive gesture, and in those circumstances I tend to do a better job of it. If it were me on the other end of the lens, of course I wouldn't mind at all - but I'm not on the run, working without papers, embroiled in an affair or otherwise trying to hide what I'm up to. However, I'm always considerate that other people might be, and that's their business.

 

I remember I took some casual passing photos of a building site in London a few years ago and I noticed when I got home to sort them out on the Mac, that in almost every shot all the workers in high-visibility jackets had tipped or held their hard-hats down with their hands to obscure their faces - every single one of them. They must've noticed me shooting, and might have had some people not exactly working legally there - who knows, but prior to this I hadn't considered that so many people might have something to hide and that it isn't my purpose to pry or dig. Then again, a] I prefer a polite approach, and b] I'm really not a fan of street photography even though I do it a lot - I feel dirty doing it.

[bobatkins]

You can take a picture of anyone who is out in public. You don't need permission before or after you take the shot.

 

You might get punched in the face if you take this too far of course, but legally you can do it (unless you break other laws like disturbing the peace, harassment etc.).

 

You can display the images as art and sell them (as art or for editorial use) without any permission being obtained from the subject. The courts have made this pretty clear. You can't misrepresent the image (title it "crack dealer" if the person was simply standing on the street), but that comes under laws related to libel and slander, not photography and releases.

 

See http://www.iht.com/articles/2006/03/17/news/lorca.php for the Philip-Lorca diCorcia case on this subject.

[jordanazeldin]

thanks bob. very helpful!

[akajohndoe]

However, in the public does not include, for example, taking pictures of people dining in a restaurant near the window.

 

And if you are punched in the face, that is of course assault and battery and you can file charge against that person.

[ian_tindale]

I suppose philosophically, having satisfied the dimension of "can you do it", most of us dwell somewhere along the axis of "should you do it".

[jordanazeldin]

good point ian. and for some reason, i really gravitate toward "YES, you should do it," provided it isn't exploitation. The photo has the ability to show the world a viewpoint or event or experience as perceived by one person in one instant that can never and will never be seen again. THAT is why I say the photo should be taken. That captured moment has the ability to move people, change them, make them think, enrage them, or what have you...i think there can be value in asking the person you would like to take a picture of beforehand but that really changes the dynamic of the photo (not necessarily for the worst). It becomes not only about the subject but about the subject?s response to the camera and his/her relationship to the picture taker. That adds another interesting layer but perhaps not the layer the photographer wants present in the photo...

[brucecahn]

Bob Atkins is right. Though not when a decisive moment, I have tried something new lately.........actually asking them. Some people are quite flattered and love it. But if you want a great candid street picture you will not get one by asking. Grab the picture and get on with the day.

[m_.]

Q: Which country is "this country"?

 

A: In America.

 

No, America is not a county. The last time I checked, it was still a continent.

[Spearhead]

<i>However, in the public does not include, for example, taking pictures of people dining in a restaurant near the window.</i><p>Why is that? In the legal classes for photographers I have taken, we were told that as long as you are on public property, you can shoot, including into windows.

[DickArnold]

One caveat. As I understand it the issue about selling pictures without permission as art is based upon a New York State court decision. There are other jurisdictions. And, "there is no accounting for judges". I am not a lawyer and I do not give legal advice. I could be wrong about the above so maybe someone with legal qualifications could correct me.

[john_elder1]

Bob Atkins is correct. Think about it. If permission was required to take a photograph in public, street photography as we know it wouldn't exist. HCB wouldn't have enough photographs to make a book.

[engelgrafik]

DN, you can indeed take pictures of people inside a restaurant through the windows. Privacy only includes an EFFORT to be private. Sitting in a restaurant in sight of the windows is zero effort to be private. The photographer wins the case.

 

Christopher Graham, Matt Laur and others... the law is pretty clear, especially (but not as a result of) the Philip-Lorca diCorcia case in which a Rabbi tried to sue diCorcia for taking his photo on the streets of NY and "violating his personal and religious privacy". The judges threw out the case because they recognized that pretty much all photography (except for ones in which individuals really did expect to be private, as in a bathroom or in their house with closed shutters) represents an INHERENT interest by society. Basically, in a nutshell, if photographers didn't have the right to take photos of people without asking, we wouldn't have a huge archive of HISTORY and EVENTS to recall. Every photo of someone or something has the potential to have SOME value to everyone.

 

Without getting too philosophical, let's get straight to the point. This isn't old wives tales. This isn't hearsay. This is the LAW in the USA: A photographer only needs to worry about these 3 things:

 

1. Is the subject on private property, and if they are, am I also on private property? If I am, I will USUALLY need permission. But there are even loopholes here, such as if it's a PUBLIC event in which people cannot expect privacy. Such as a free event held on private park or something.

 

2. Is the subject enforcing some form of privacy on said private property? If I'm on PUBLIC property, I can take a picture of someone standing in their window, in their front or back yard, sitting in a restaurant through the window, etc.. even though THEY are on private property. HOWEVER, if they make some effort to enforce privacy, such as closing their curtains, putting up a fence that conceals, etc. then you may get in trouble shooting through the cracks in the curtains or climbing up a tree to see into their back yard.

 

3. Is the subject protected by security regulations, ie. protected by DHS, military, etc.

 

These are the ONLY three things a photographer needs to care about if he/she is simply taking pictures of the world around them for artistic purposes, artistic sale and publishing.

 

Now, if these photos are used for ADVERTISING in which it is implied that the subject endorses the advertised subject (a photo of a kid on the cover of your book does NOT constitute advertising or endorsement, so you're still safe!), then you're in a whole other realm and prepare to get sued unless you asked for permission and got a model release!

[engelgrafik]

Dick Arnold said:

 

One caveat. As I understand it the issue about selling pictures without permission as art is based upon a New York State court decision. There are other jurisdictions. And, "there is no accounting for judges". I am not a lawyer and I do not give legal advice. I could be wrong about the above so maybe someone with legal qualifications could correct me.

 

MY REPLY:

 

Dick, the NY court decision simply *reinforces* an already-standing 100+ year old acknowledgement by federal and other courts that photography is protected.

 

If the NY decision was solely responsible for protecting photographers, there would be lots of photographers in the past 100+ years losing lawsuits. Photographers rarely lose lawsuits.

 

Lots of people have sold photo books full of images of people that didn't give permission.

 

It's nice to get permission, we all highly recommend it, it's simply good and professional to do so. However, I gotta tell you, if someone said "no", I'd still publish it if it was good enough. As a big and tall guy, I simply don't ask anymore unless the subject discovers me doing it. Almost always they have become confrontational, even though I'm known as a very nice and personal guy. First impressions mean a lot. Large guy with camera is viewed as a pervert. Shorter, smaller men and women have it much easier. I see my female friends and other male friends who are less imposing get away with everything. I simply don't ask anymore, I can't afford to get in a fight.

[DickArnold]

Jeffrey. Thanks for the thoughtful reply. My question was narrowly focued on sales as art. I was in Russia in the winter of 1990 subsisting on three year old Kilbasa and cabbage while people were starving. I was chased by an angry group of hungry people who were in a food line. Scared the hell out of me. i still have the photos of the line. I was too busy running to picture the pursuers. I am doing some old faces and I was wondering about the art sales because I want to show a few eventually. I used to do newspaper work and was fairly sure of my ground in that milieu. So I will do a few more old faces.

[akajohndoe]

"Why is that? In the legal classes for photographers I have taken, we were told that as long as you are on public property, you can shoot, including into windows."

 

"DN, you can indeed take pictures of people inside a restaurant through the windows. Privacy only includes an EFFORT to be private. Sitting in a restaurant in sight of the windows is zero effort to be private. The photographer wins the case."

 

Actually, I have seen other opinions. In particular the ones that conclude that a restaurant is in fact private property and that diners do expect privacy. However, I am not an attorney.

[charles_hohenstein]

I would hope that a photographer who is also a decent person would consider not only

what is legal, but what is polite. In my opinion, someone who walks up and takes my

picture without asking and then disappears is a jerk. It might be legal, but it gives

photographers a bad name. How about doing the decent thing, not just the legal thing?

[mike dixon]

I would hope that a decent person wouldn't expect others to ask his permission in order to exercise their rights. If a black family wants to move into a white neighborhood, are they jerks if they don't ask the permission of their neighbors first?

[Spearhead]

<i>Actually, I have seen other opinions. In particular the ones that conclude that a restaurant is in fact private property and that diners do expect privacy.</i><p>Assuming you mean legal opinions, why don't you post some citations?