SOMEONE IN THE FORUM ASKED A WHILE AGO ABOUT TAKING PHOTOS OF PEOPLE WITHOUT THEIR KNOWLEDGE TO MAINTAIN THE REALISM IN A SHOT. MY QUESTION IS IF I WANT TO USE THOSE PHOTOS TO EVENTUALLY PUBLISH IN A BOOK, DON'T I NEED OBTAIN THE CONSENT OF THOSE IN THE PICTURES OR SOME SORT OF RELEASE?

-- LEAH WASHINGTON (LTWASHINGTON@EARTHLINK.NET), December 15, 1999

Answers

Please don't YELL all the time. It's hard to read.

I think the post you are alluding to was about shooting in a mall which is actually private property. In that context, I mentioned a law valid in Germany (but I assume that some restriction does apply in other countries, too.), which we call the "Right of Your Own Image". It is true that you must not publish portraits of persons shown as individuals w/o their consent to the publication, publishing being defined as showing a print to anyone other than the photographer himself. (This implies that you may shoot anyway.) The restriction does not apply to persons who are part of public life, such as politicians, movie stars, etc., but it surely applies to Mr Nobody in the street. It also does not apply when a person is shown as part of a crowd. You can see that there is some margin for interpretation in this. (To drive it to the extreme: If I show a photo of three people, are they three individuals, or are they a crowd of three?) Not being a street shooter myself, I haven't got in conflict with this lay. So I can't give you practical experience, I can just quote one of the worst-case projections given in a different post: What if your book makes someone aware of her husband/his wife meeting someone else?

This may seem a somewhat inconvenient solution: But isn't there a chance that you try to obtain a permission to publish the photo after the shot? You haven't spoiled the authenticity then, as your subject didn't know (s)he was being photographed. You do risk not being given the permission, and you also risk having to explain yourself to people, but I would think that using them as subjects for your art, and possibly making profit with the book, you owe them that much respect.

One might argue that whatever people do in the public ought to be suitable for the public, but that's just the ethical side of it. You are probably interested in legal information only. However, I would like to put this to the street shooters in this forum. I will try to start a thread on that issue.

-- Thomas wollstein (thomas_wollstein@web.de), December 16, 1999.

My policy is that anyone who recognizes themselves in one of my street shots and can prove it's them (sending a photo of themselves will do) gets a free print.

So far, nobody has taken me up on my offer.

This is one of the issues we'll hopefully be discussing in the live chat on street photography which will take place in Photohighway.com's chat room on Tues. Dec. 22 at 4:30 pm (EST).

Go to http://chat.photohighway.com

Hope to see you there!

-- Mason Resnick (bwworld@mindspring.com), December 16, 1999.

The courts have ruled that if a photo is to be used to "inform or educate" no release is necessary. If a photo is to be used to "promote for sale or advertise" something a release is required. Basically, if a photo is used in an ad to sell something or to be sold through a gallery, a release is needed. If a photo if published like in a newspaper, book or magazine but not in the form of an advertisment no release is needed.

-- Joe Cole (jcole@apha.com), December 16, 1999.

Regarding the first reply above. While working for newspapers I made hundreds and maybe thousands of photographs of people in all sorts of situations from playing in a park to taking their last breath as they died laying in a street at an auto accident, and none singed releases. At a ballgame I might turn my camera to someone in the stands for a feature photo and none were asked to sign releases. A release is not necessary to publish a photo unless is if for an advertisment.

-- Joe Cole (jcole@apha.com), December 16, 1999.

Joe may be referring to the situation in the USA. I think the legal situation is similar here in the UK. Thomas talks about Germany, and I believe France is similar. Where are you, Leah?

-- Alan Gibson (Alan.Gibson@technologist.com), December 16, 1999.

I am referring to the USA. Generally the same rules apply in Mexico and most of Latin America. That's about all I can speak for unless, of course, you're in a war zone or some situation like that. Then I've always found there's the possibility that I might be shot for making a photo. You have to then decide if the photo is worth taking that chance. For a photojournalist, taking that chance is part of the job.

-- Joe Cole (jcole@apha.com), December 16, 1999.

For what it's worth, the situation in Australia requires a model release for the purposes of advertising only. We have no wholesale law of privacy, no "right to one's own image". Legal recourse would only (in my opinion) be available in cases of defamation or trade practices. This would include photos used for advertising without permission, eg a picture of a catholic priest endorsing condoms - defamatory and "misleading and deceptive".

There are cases where footballers successfully sued for defamation because a photoshoot in the showers caused their genitals to be seen. One of them received ridiculous damages for that but only because defamation cases here can, unfortunately, be decided by juries (just about the only jury trials possible outside of criminal law).

I was reading an interesting Canadian decision recently where a photograph of a teenager published in an arts magazine resulted in $2000 damages. The photograph merely showed the person in a public place, sitting on a steps of a building. Of course, this decision was based on a right to privacy under the Quebec Charter of Human Rights and Freedoms. The provision is a pretty liberal generality but, in my opinion gives rise to ridiculous litigation. So in jurisdictions where such provisions exist, any publication of an identifiable person would lead to liability. Australia (and Britain, I think but unsure) is thankfully not one of them.

-- Tim Bolotnikoff (Timothy_Bolotnikoff@justice.qld.gov.au), December 16, 1999.

That's why I live in the USA.

-- Joe Cole (jcole@apha.com), December 20, 1999.