We all know the "M" body makes a great street camera but I'm wondering about the legalities of taking pictures of a total stranger on a street and then showing them in public such as on the internet. Is this where model consent forms come in or does anyone give up their right to privacy by the mere act of going into a public place? Just wondering.

-- Dan Roe (roedj@juno.com), August 05, 2001

Answers

I work for a newspaper as well as having published pictures for 25 years. The basic rules are:

Taking a picture in a public place is generally always legal. But if that place is part of a secured emergency area like a police crime scene line or fire or a riot, you may get arrested for being where you shouldn't whether you're taking pictures or not. And not all street cops know the law, so you may wind up getting arrested anyway (it happens to news photographers who ARE acting legally about once a month in the US).

If you are not using the picture to promote something (i.e. commercial use - advertisement, service, etc.) you can 'publish' a picture taken in a public place without permission (e.g. a release). Publishing includes the Web (my paper has a web site and runs some of the same pictures that run in the newspaper.) Certainly 'editorial' use - reporting on the state of the world - is generally protected. And editorial use can be extended to cover street photography (a la HCB, Winograd, Erwitt, et al) even if the 'event' being reported about is just a gesture or expression or moment.

Caveats: If, in publishing the picture, you imply something about the person (as in a headline or caption) that is possibly defamatory or even just untrue, you may be liable for libel, but a model release may not help in that case anyway. The New York Times (or their Sunday magazine) got sued for running an anonymous but recognizable telephoto street shot of a black man in executive clothing with a story about token blacks on Wall Street, and lost. Because the implication was that THIS man was a token black on Wall Street.

Also, the cover of a publication (and by extension, possibly the splash page of a web site) has been considered commercial use in some cases because it 'promotes' the magazine on news stands - in effect it's an advertisement for what's inside the magazine. It is also possible that a 'portfolio' web site for a photographer intended to bring in business may count as 'commercial' usage, since it is 'advertising' for the photographer. In theory even putting a picture in your print portfolio could be considered 'advertising' for your services if you show it to potential clients - if some court decides to rule that showing it constitutes 'publication'.

Also, there is still some question about 'fine art' usage, if, for example, you are selling prints of the picture for profit. Is that 'commercial' use? My paper sells reprints of pictures to the public (those that have already run in the newspaper) as do other papers/ publications, and I've never heard of such use requiring releases beyond what was required to publish the picture in the first place.

Final blanket caveat: the law is always being tweaked by rulings on new cases, new definitions, new technology (eg, the Web). So what is generally considered legal or illegal (or liable for civil action) may not be next week. Even more finally, you can always be sued for almost any reason if someone wants to, even if the law eventually proves to be in your favor.

Any Leica-owning legal minds out there want to correct or clarify my practical understanding?

-- Andy Piper (apidens@denver.infi.net), August 05, 2001.

Everything you've said is pretty accurate. I've been working on a book about 'Cafe Culture' (people in cafes), got to wondering if I'd have any problems, so took all my images to a lawyer, just to be sure. The only one he said could give me problem was of a lone male seated under a poster with the headline "Date Rape - do you know who your friends are?" The implication was to strong that this person was date rapist. Won't include it in the book.

-- Bob Todrick (bobtodrick@yahoo.com), August 05, 2001.

Does anyone know what the rules are in foreign countries -- especially France. I hear France has strict privacy laws.

-- David Enzel (dhenzel@vei.net), August 05, 2001.

Don't forget that many "public places" are actually private. Malls, theatres, restaurents, etc.

-- Bill Mitchell (bmitch@home.com), August 05, 2001.

Bill, in Canada it seems that while, for example a restaruant is a private establishment, it would be the restaruant owner that would have justification to cause you problems. When I shoot in cafes, I always get the owners permission, but it still appears that the people I shoot fall under the same 'rules' as above.

-- Bob Todrick (bobtodrick@yahoo.com), August 05, 2001.

Photographs taken in a public place and not for commercial profit(as in advertising) can generally be exhibited, published and/or sold. If the subject is recognizable and is shown in an unfavourable or embarrassing way, or the photograph implies something unfavourable (such as the "date rape" comment earlier), then it definitely should not be shown as legal action would almost certainly succeed.

In relation to street photography in France, I was taking a night photograph on the left bank at about 7 pm (Hasselblad on a tripod with 250 lens)when I was surrounded by several armed police who demamded that the camera be pointed downwards, proved to be a camera and shouted at for a time in French - name, hotel, passport, etc. They separated my wife and questioned her, and After my wife showed documents they grudgingly let me continue.

At that time M. Mitterand lived in an apartment a few streets away. Gross overreaction, but it's their job I guess. Apart from that, I have not had problems.

-- wayne murphy (wayne.murphy@publicworks.qld.gpv.au), August 05, 2001.

I have a short blurb about the law w.r.t. NSW in Australia in the "Privacy" section of the essay in my "Everyday Life" project:
 
4020 Everyday Life
 
Basically, there's no law against photographing people in public in Australia. However, subjects in photographs can get injunctions if the photograph humiliates or degrades them. They can also start actions in defamation - don't forget, no freedom of speech protection here!

-- Andrew Nemeth (azn@nemeng.com), August 05, 2001.

Gem of a question, great responses. A lot of my work comes from the Peoples Republic of China, (Great Wall, 3G Dam, Yangtse, Xian, Silk Route), pays to have a Govt. guide with you. Never had a problem, and was never refused an opportunity.

-- Paul Nelson (clrfarm@comswest.net.au), August 06, 2001.

What Andy said is an excellent summary of the general law across the federal and various state jursdictions. Of course, you may still get sued in a non-meritorious action, or there may be subtle aspects of your local jurisdiction that differ. Whenever you start to make money off of someone else's likeness you are well advised to have a compreshensive model release, properly executed (these are issues of the law of contracts). Also, there is a tort of invasion of privacy action where you show someone in a bad light (this is different from a libel action). A bad light example might be, while they are urinating or picking their nose, etc. Sorry to be so graphic, but I hope you get the point. The difference here is that truth is generally a deffense in a libel action, whereas it is not in an invasion of privacy action. Don't confuse this with your 4th and 5th Amendment rights to privacy, they are different.

As always, this does not constitute legal advice to any individual, and I recommend that you seek competent legal counsel pertinent to your issue and jursidiction when needed.

Dan Brown, Intellectual Property Attorney.

-- Dan Brown (brpatent@swbell.net), August 06, 2001.

The observations on street photography in France lead me to believe that either

1. the French really got sick of Cartier-Bresson walking around sticking that Leica in their faces

or that

2. they were paranoid about photographers all along, despite having invented the medium, and H.C-B. developed his legendary stealth as a way of coping with those darn gendarmes. No wonder he paraphrases De Gaulle-"aim fast, shoot and scram". The cops would have got him if he had not :-)

-- Mani Sitaraman (bindumani@pacifc.net.sg), August 07, 2001.

As a 1st time visitor from the Pentax 67 site can I add my comments on street photography in the UK (and a bit about France). Assuming the same laws apply to very small and very big cameras....

In the UK you can take photographs of whatever you like as long as you are on public right of way. Some other laws may apply eg: blocking public footpath (with a tripod), laws of decency (taking a photograph of someone undressing / sunbathing in their home). If you take a photo of a person who is recogniseable and then publish for profit the the individual can sue, so a "model release" agreement is required for commercial work. Some defence sites will have specific requirements.

If you are standing on private land (including a public footpath through private land / shopping centre etc. ) the the land-owner can lay down whatever rules they like. A lot of London is actually private property.

For France I would assume the same rules apply, the only exception is that architects have recently sucessfuly sued photographers who profit from taking photographs of their buildings. This is very dodgy ground but you only need to be concerned if you are a commerical photographer. Generally Spanish, French etc. are a lot hotter on defence sites and government buildings. I don't argue with 18 year old conscripts with a machine gun.

-- Tony Estcourt (tony.estcourt@talk21.com), August 08, 2001.

I would like to reinforce what was already mentioned about the fact that in America many places that seem public are in fact private. Those of you who live in large cities have a distinct advantage when it comes to candid street photography. Those of us who live in suburbia or middle America are quite limited. This winter I stepped into my local shopping mall to test out a digital camera before taking it with me on vacation. I chose the mall because in the dead of winter in my town not much is happening on the street. The mall has a central area with fountains where many people hang out and drink coffee and kids play near the fountains. As I walked from the entrance of the mall to the fountain area I arbitrarily shot about 6 images, choosing them to test the camera's capabilities. I then bought a coffee and sat down by the fountain, whereupon 3 burly security guards surrounded me and demanded to know why I was taking photographs of the "patented" Abercrombie and Fitch storefront and the tea displays at Starbucks. I explained that I had no sinister intent and was merely testing a camera. They produced a set of rules governing behavior in the mall including things like drunken and disorderly conduct, unrinating in public, and taking photos. I told them I had no idea that such a rule existed and offered to desist from this awful activity. That satisfied them for awhile but 20 minutes later they returned and demanded that I turn over my "film". Of course they had no right to do this, though they could have asked me to leave. As I was certainly not looking for a hassle I deleted the images from the camera with them watching and they finally left.

So the lesson is, just because it feels public doesn't make it public. This has also happened to me at a Borders books and at a museum recently. It is not entirely clear to me why these places are so protective, but it is their right to be I guess.

-- Steve Rosenblum (stevierose@yahoo.com), August 21, 2001.

Okay, after reading all the responses, I'll have to say I'm still not clear on what's legal and what's not.

Here's situation #1:

I want to do a documentary photo story that I will eventually exhibit -- in my case a modern dance company. I get verbal permission to shoot rehearsals and performances from the choreographer/artistic director. I capture a number of photographs, some of which I decide would go in my exhibit. I'll sell prints to whomever is interested, including the dancers themselves who rarely get photos of themselves in action.

Do I need specific model release forms for all the dancer depicted in my photos?

Here's situation #2:

I want to do a documentary project on a certain section of a street in town with an active nightlife -- both legal and illegal. I hang out on the street, photograph nightclubs or bars from the street -- through windows, peopel entering and exiting through the main doors. I also shoot people walking, talking, dealing drugs, streetwalkers, cops dealing with the druggies and streetwalkers, couples holding hands under a neon sign saying "High Life -- Good Times," etc. You get the picture. All shot from the street or sidewalk. I don't ask any of these people permission or even explain what I'm doing unless they ask me. Basically, shoot first, deal with questions once the film is safely in my pocket. Now I want to exhibit 30 photos under the context of "Lake Street Nightlife."

Do I need model release forms for these photos too?

As background, my day job is as a reporter for a local newspaper. I also shoot for the paper -- mostly my own stories. Under my newspaper's security blanket, I have no problems shooting. When I'm working on my own stuff, it gets a little iff for me.

sorry this is so long. Thanks in advance for any comments.

-- v. virtucio (danzfotog@yahoo.com), August 22, 2001.

In the case of the dancers, it depends on whether or not there is an agreement in place between the dancers and the dance company, and then you and the dance company. Otherwise, you will need model releases unless you restrict sales to the dancers themselves.

The other case is less clear, especially if you are not selling the images, but only exhibiting. If you depict illegal activity, you may want to ask a lawyer before showing photos.

-- Jeff Spirer (jeff@spirer.com), August 22, 2001.

Regarding the message above, about the security guards attempting to confiscate film (from a digital camera, of all things!): My understanding is that as long as there is no expressed prohibition on photography in a public place, you have every right to shoot pictures until and unless you are told to cease. Hence, as long as the mall had no signs prohibiting photography, you had the right to shoot until the guards told you to stop, at which time you must follow their request. But in such cases, their prohibition is NOT retroactive, and if they threaten to take your film, you should demand that they bring in the police -- to arrest THEM for theft.

I have faced this problem a few times, as I often shoot musicians in nightclubs. If possible, I seek permission from the musicians or their managers ahead of time; if that is not possible, I do not ask the nightclub managers, as they almost always say "no way" even though not one (of dozens) of musicians have ever refused me. On one occasion, while photographing a show (within my rights, as explained above), an enormous bouncer dragged me up front, where a freakishly tall staffer (easily over seven feet) towered over me, talking threateningly of taking me film. The only course of action in such situations, in my opinion, is to calmly but firmly try to explain the law to these people, and if it doesn't work, simply request that they call the cops.

-- Douglas Kinnear (douglas.kinnear@colostate.edu), August 23, 2001.