photography and law: instrument player in Chinese Festival, Botanical Gardens

[h_s1]

<p>Okay, not the whole Botanical Gardens, but my question is related to the Chinese Festival that is held there in fall. During the festival a girl plays a chinese instrument in one of the garden sheds. On a table in front of her, she has this little sign with a cross on a camera, implying "photographing her is prohibited".</p>

<p>IIRC, the gardens are municipal property of the city of Montreal.</p>

<p>Can somebody familiar with photography laws Quebec, Canada, know if this is legal or has any legal basis? If I am walking around taking pictures of the lanterns exhibition, which is definitely allowed, is it illegal for me to take her pictures as well or if she appears in part of one of my photos? I didn't actually take her photo due to that sign, but recently I have been reading about street photography and laws and this situation occurred to me.</p>

<p>Thanks in advance.</p>

<p> </p>

[William Kahn]

<p>Regardless of the law, if someone indicates that he or she does not want to be photogaphed, that request should be honored.</p>

[derek_kennedy]

<p>If its legal for you to photograph them, you should be able to regardless if she doesnt want to be. If she doesnt want to be photographed, stay home.</p>

<p>Might be an issue due to her age (might be a minor, since you used the term 'girl' vs 'woman'). She is in a public place so Id say fair game but I live in Ontario not Quebec so no idea what the law, if any, would be for privacy in public.</p>

<p> </p>

[h_s1]

<p>William: And I did. I am clear about her wishes, which are not the topic of my query. I am specifically asking about the law. You can wish for anything you want, but that doesn't make it legal.</p>

<p>But considering your statement for a moment, you don't qualify it with the place of shooting. Example: How can one make oneself invisible on a street to cameras? I have seen street performers trying to prevent casual photographers from taking their pics. A street performer! If the photos were meant to be published and sold, it would be a different manner. But one is serious about cameras being pointed their way, I am not sure they should be performing on the streets.</p>

<p> </p>

[Norma Desmond]

<p>I take requests for no photographs on a case by case. Rarely would I take a picture of someone who actively made it known they didn't want their picture taken. I only selectively shoot on the street out of respect for privacy and I'm obviously that a big street shooter for that reason. Sometimes a significant photo for me will override that particular ethic. I'd probably give a lone, quiet musician in a garden setting more privacy consideration than a street performer out in the midst of a city scene. Just me. We each decide for ourselves. I don't think much about the law when I'm out shooting unless a cop is walking up to me, which has never happened.</p>

[CharlesBecker-Toronto]

<p>"If its legal for you to photograph them, you should be able to regardless if she doesnt want to be. If she doesnt want to be photographed, stay home." <br>

I'm really sorry to hear someone feel that way. There is more to this world than the law-there is politeness, respect, and civility among other things.<br>

That attitude certainly makes it more difficult for other photographers.</p>

<p>cb</p>

[bobatkins]

<p>In the US (can't speak for Canada) it's perfectly legal to take pictures of anyone anywhere they do not have a reasonable expectation of privacy. Doesn't matter where they are, doesn't matter where you are, doesn't matter how old they are, doesn't matter whether they object or not (from a strictly legal viewpoint). You may fall foul of trespass laws if you are on private property, you may fall foul of harrassment laws if you persistantly follow and photograph someone, you may fall foul of "disturbing the peace" laws if you get into an argument, but these are different offenses. Taking the picture is not against any (US) law.</p>

<p>Things may, of course, be different in Quebec</p>

<p>The ethics of photographing someone in public against their wishes may be questionable, but the legality isn't.</p>

[h_s1]

<p>Charles, I agree with your point about being reasonable and polite. I don't think anyone would disagree with it, btw. However, when a situation demands specifics, or when the subject himself may be unreasonable, one has to stand firm if the law is on one's side. Hence, I believe, it is extremely important to be aware of the laws, rights and duties. I am a casual photographer. For me a polite request for not being photographed is sufficient. However, I have seen a friend being asked, quite initimidatingly, for money from a street performer when my friend was taking his photo while the performance was going on. In a street. In front a large crowd.</p>

<p>So, yes, one should be polite and respectful, no doubt about it, but one should be prepared to exercise their rights when the other party is not.</p>

<p>The girl in municipal gardens is, maybe, a different matter. I am not sure about the law, but the lands there are not private, they belong to the city. I saw number of people taking her pictures, some from near, generating frowns from her when she noticed, and some from afar, going unnoticed. I don't really see any point of a restriction when it cannot be enforced. Now, granted that perhaps she didn't want people from making her go blind by firing their flashes in her face, but that should be made clear.</p>

 

[h_s1]

<p>Bob, thanks. Yes, from some background reading, the laws do appear to be different in Quebec. Apparently, it has something to do with some french law that says only a person himself has a right to his own appearance. Not sure what it means, but I find this a bit strange. And, this is only in Quebec. Furthermore, I understand it is legal to take photos of a crowd. But if it is a single person or a clear subject, one must ask permission before publication (and profit?) of that photo, while photographing for private use is okay. The latter point, I suppose, allows casual photographers to take photos on the streets in Quebec while not having to wave release forms to all people in the view for signing? Not sure.</p>

<p>So taking all this into account, I suppose I am required to ask for a release form (permission) from the girl playing the instrument if I want to publish the photo. But if the photo is not for publication and/or profit, I am not(?)</p>

<p> </p>

[h_s1]

<p>William, I couldn't help but think of a counter example. Consider a couple making out in public. It is usually considered impolite to stare at them. But by no stretch of reasonable thought can one make an argument that it is illegal to do so (stare). The phrase "go find a room" comes to mind. :)</p>

<p> </p>

[daverhaas]

<p>I'm guessing that the girl put the no photos request up to avoid having flash and shutters clicking right in front of her while she was performing.</p>

<p>I know it is fairly standard practice during recitals to ask that the audience not take photos while the performer is actually playing, but to instead stage them after the performance.</p>

<p>Dave</p>

 

[mikael_karlsson]

<p>One thing that is often overlooked in these debates is that the person you're photographing has no way of knowing what you intend to do with the photograph. That might be one reason why people react the way they do. This doesn't have much - if any - impact on the legality of anything but I always think it better to try to see things from all sides to try to understand why people do what they do in the way they do it.<br /> <br /> There can be a lot of reasons why someone doesn't want to be photographed. They can be hiding from a dangerous and abusive spouse, their religion might have issues with photography, they might have real self-image issues etc. Again this has no impact on the legality of things.<br /> <br /> HS, as far as <em>publication </em> goes I can only speak for the US. But here, it's the usage that determines if a release is needed or not. Generally speaking for <em>editorial usage</em> no release is needed while for <em>commercial usage</em> a release is needed. This has nothing to do with if the photographer gets paid or not. Example:<br /> I photograph you out photographing this event. The photo is used in a newspaper about the event. No release needed. The photo is used in a book about street events in general, street photography, Quebec or whatever. No release needed. The photo - the same image in all three examples mind you - is used in an ad for the, manufacturer of the camera you use in the photo. Model release needed.<br /> <br /> Simplified: Commercial usage is when a photo is used to sell or promote a product or service. For commercial use a model release (and property release if appropriate) is almost always needed.</p>

[abargrill]

<p>Quebec has its own laws, distinct from those of other provinces in Canada. Preparing for a visit a few years back, I tried to make sense of somewhat contradictory precepts The best that I can come up with is that one can take photos of people but any form of publication invokes other rights. It appears to be a civil matter (as opposed to criminal). It also appears that Quebec recognizes the right to "own" one's image. I don't recall seeing anything any about the right to <em>take</em> of photograph, which should be permitted because freedom of expression is also protected and the mere act of taking a photo would not appear to cause harm or embarassment, by itself.<br />A summary of a relevant Supreme Court case: <a href="http://www.canlii.org/ca/cas/scc/1998/1998scc31.html">http://www.canlii.org/ca/cas/scc/1998/1998scc31.html</a><br />A relevant article: <a href="http://www.montrealmirror.com/2005/080405/news1.html">http://www.montrealmirror.com/2005/080405/news1.html</a><br />Hope this helps.</p>

<p>Alan</p>

[dave_s]

<p><em>Quebec has its own laws, distinct from those of other provinces in Canada.</em><br>

<em></em><br>

<pedantichorsesass>Off the topic, but the history of this (as every Canadian schoolkid learns) dates back to 1763, at the end of the Seven Years War (aka the French and Indian War to Yanks). As part of the treaty settlement, the citizens of New France were permitted to retain French civil law, as well as their language.</pedantichorsesass></p>

[steve_swinehart]

<blockquote>

<p>During the festival a girl plays a chinese instrument in one of the garden sheds. On a table in front of her, she has this little sign with a cross on a camera, implying "photographing her is prohibited.</p>

 

</blockquote>

<p>You seem to want to make this into a legal issue instead of just making a photograph. </p>

<p>If you really want to photograph her, then after she's done playing go up to her and start aq conversation with her. Tell her you respect her not wanting her photograph taken while she's playing as you understand that can be distracting - especially if people use flashes. Ask her if there is any time prior to or after a performance that you could photograph her. Also tell her you will provide her with photographs that she can use for publicity or personal use.</p>

<p>Part of photography is knowing HOW to get people to respond to you - instead of confronting the situation - work with her as a model...my goodness you're making this way more difficult than it needs to be.</p>

[h_s1]

<p>Steve, yes, totally agree. If I wanted to take her picture, I would ask her to work something out.</p>

<p>However, knowing such diplomacy does not preclude the necessity of knowing the law. I wasn't aware and I was curious what others knew about these kind of situations. Hence my original query. I am not trying to make it difficult, but I agree that being aware of the law does amount to gaining more specific knowledge and can appear to pedantic and overly complicated to an average lay person.</p>

<p> </p>

[bobatkins]

<p>French Law (and EU law) does have additional privacy statutes. However I think they apply principally to the <em>use</em> of images rather than the <em>taking</em> of images. Again I'm no expert in French law or how it is interpreted in Quebec, so you'd need to look at the Quebec statutes on privacy which is where I think you'd find the laws concerning photography in this context. This citation may be of some use - http://ambientlight.ca/laws.php#Quebec - it seems to suggest it's the use of the photo, not the taking of the photo, which is looked at differently in Quebec (Canada?) then it is in the USA (see http://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia)</p>

<p>I have an article on photographer's rights in the USA at http://www.bobatkins.com/photography/tutorials/photography_law_rights.html and it has some links to information on the laws in other areas (Canada, UK, Australia - but not France!).</p>

[h_s1]

<p>Bon, wonderful links. Links like these are exactly what I was looking for. And your article was a wonderful read. I think I understand this concept of right and duties of a street/public photography much better than I did before reading this thread and your links.</p>

<p>Thanks.</p>

[keith selmes]

<p></p>

<p >Regarding French law, I thought that France had some strong privacy laws nowadays, which virtually outlawed street photography.<br>

Somewhere buried in this thread <a href="../france/paris">http://www.photo.net/france/paris</a> are comments about a new law in 2003 which had that effect, and someone being roughed up by gendarmes.</p>

 

<p >However I checked up recently, and found some fairly convincing discussion which suggests this has been exaggerated. This was in May 2008, and I think is still current.</p>

<p >The discussion is here</p>

<p ><a href="http://www.largeformatphotography.info/forum/showthread.php?t=35938"><em><strong>http://www.largeformatphotography.info/forum/showthread.php?t=35938</strong> </em> </a></p>

<p > </p>

<p >From this, Roger Hicks says</p>

<p >“<em><strong>In theory</strong> </em> , there is a fairly ferocious 'right to privacy' in France, but in practice, 99.99% of people don't give a toss “</p>

<p >and</p>

<p >“Furthermore, this 'right to privacy' includes only <em>published</em> shots, and people are only going to come after you if (a) they see the picture and (b) they think you have made lots of money out of the picture. “</p>

<p > </p>

<p >A french photographer then offers some well referenced explanation, particularly about a case where some people sued a photographer who published street photos of them</p>

<p >“the people have to prove that taking & publishing a picture of themselves was detrimental to them”</p>

<p >and</p>

<p >“French judges referred to the European law (article 10 of the European Chart for Human rights granting the rights to journalists to freely publish) ruling against the French law (I quote Le Figaro) :<br /> <em>Le tribunal avait alors fait primer le droit à l'information garanti par l'article 10 de la convention européenne des droits de l'homme sur l'article 9 du code civil. Un retournement.</em> “</p>

<p > </p>

<p >Back in Canada, I think there was a case in Quebec some years ago, when a street photo of a girl was used to illustrate an article about homeless people, and the girl sued and won as it misrepresented her, and in fact she was just sitting on the steps outside her house. Which seems fair enough.</p>

<p > </p>

<p > </p>

 

[JDMvW]

<p>As Bertolt Brecht wrote in the <em>3-Penny Opera</em> :</p>

<blockquote>

<p>First grub, then ethics.....</p>

</blockquote>

<p>There's a certain justification for ignoring ethics if you are starving, but I think that Brecht would have rejected the idea of "First photography, then ethics."</p>

<p>If this "girl" is a girl in fact, then you, "boy," had better be careful. If she is an adult, sometimes known as a <em>woman</em> , then try Steve Swinehart's suggestion.<br>

Otherwise, I suppose it's not actually illegal in Quebec to carry a concealed camera in a public place and steal a picture of someone who has specifically asked not to be photographed. I wonder what the reaction of the other watchers might be?</p>

 

[john_h.1]

<p><em>There is more to this world than the law-there is politeness, respect, and civility among other things.</em></p>

<p>I agree but, if one sets out to place themselves in the public spotlight, rather than merely traveling to work or something, it is a factor in the whole 'politeness, respect and civility' analysis. <em><br /> </em></p>

[frank_dzambic]

<p>I don't have any concrete answers with regard to the legalities involved, but I found the first two replies interesting as they are completely opposed to each other. I agree with William, in that if a person indicates they don't want to be photographed, then honour the request and find something else to photograph. Call it an application of the Golden Rule, treating others how you'd want to be treated, putting yourself in someone else's shoes, respect, whatever. With 7 billion people on the planet it shouldn't be too hard to find someone else interesting who won't mind being photographed and might even encourage it.</p>

<p>Derek's reply on the other hand--well, let me just turn the tables. There's no law against playing the accordion out in public (whether there should be is another debate), and you also have no expectation of privacy when you're out in public carrying a camera. Would you like it if you were set up somewhere maybe photographing wildlife, or contemplating a macro composition, completely immersed in what you're doing, and an accordion player decided to set up next to you and start playing because he was so inspired by watching you record the scene? I didn't think so. The accordion player might also tell you "I'm not breaking any laws. If you don't want to hear accordion music, stay home."</p>

[walter_strong5]

<p>Politeness is all and good, I'm a big fan of it! However, it is important to remember that a right not exercised is a right lost. One can be SO polite that one just forfeits all of one's rights. If we don't EXERCISE our right to photograph anything we can see in a public place then we'll lose that right.</p>

[john_h.1]

<p><em>Would you like it if you were set up somewhere maybe photographing wildlife, or contemplating a macro composition, completely immersed in what you're doing, and an accordion player decided to set up next to you and start playing</em></p>

<p>This isn't quite applicable to the scenario here. The OP's story is about a person that deliberately places themselves in a situation so that they will be given much attention by others. Indeed, placing themselves in a situation where its expected people will take pictures. Your example is someone who, although out in public, is not actively trying to gain people's attention or putting themselves in a situation where photography of them is especially likely. From an etiquette standpoint, the person minding their own business deserves some more deference than someone setting out to make a public spectacle of themselves. <em><br /> </em></p>

<p><em><br /> </em></p>

[steve m smith]

<blockquote>

<p>The discussion is here<br>

<a rel="nofollow" href="http://www.largeformatphotography.info/forum/showthread.php?t=35938" target="_blank"><em><strong>http://www.largeformatphotography.info/forum/showthread.php?t=35938</strong> </em> </a></p>

<p>From this, Roger Hicks says................</p>

 

</blockquote>

<p>I would think Roger could be speaking fairly authoritively here abou the law in France. He lives there and he does have a law degree (in English law though).</p>

 

<blockquote>

<p><em>Would you like it if you were set up somewhere maybe photographing wildlife, or contemplating a macro composition, completely immersed in what you're doing, and an accordion player decided to set up next to you and start playing</em></p>

</blockquote>

<p>That would be great! Can you arrange that for me?<em><br /> </em></p>