April 10, 2009

Guide to shooting photos in public

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Shutterbugs have wide latitude to photograph strangers — but consider propriety as well as the law

Target audience: Cause organizations, nonprofits, NGOs, journalists, general public. This is part of our ongoing series designed to help nonprofits and other organizations learn how to use and create media.

JD LasicaWhen is it all right to take photos of strangers in public?

Society has wrestled with the question of street photography ever since the invention of the camera. In the United States, the general rule is that anything in plain view from a public area can be legally photographed, including buildings and facilities, people, signs, artwork and images.

In a recent case, photographer Philip-Lorca diCorcia set up strobe rigs on a New York City street corner and photographed people walking down the street. He won a lawsuit brought by an Orthodox Jew who objected to deCorcia’s publishing and selling in an art exhibition a photograph taken of him without his permission. (See Wikipedia for a more thorough discussion.)

In The Photographer’s Right: Your Rights and Remedies When Stopped or Confronted for Photography (see PDF), Oregon attorney Bert P. Krages II writes: “The general rule in the United States is that anyone may take photographs of whatever they want when they are in a public place or places where they have permission to take photographs. Absent a specific legal prohibition such as a statue or ordinance, you are legally entitled to take photographs. Examples of places that are traditionally considered public are streets, sidewalks, and public parks.” Subjects that can “almost always be photographed lawfully from public places” include accident and fire scenes, children, celebrities, law enforcement officers and private homes.

Wired magazine agrees: “Snap away, shutterbug. As long as your subjects don’t have a “reasonable expectation of privacy” — meaning they’re not somewhere they’d never expect a camera to be — you’re on pretty solid ground. Even if you photograph them while they’re on private property, you’re in the clear — just make sure they’re in plain view and you’re not trespassing.”

Although some building owners have claimed a copyright on the appearance of their building, U.S. copyright law explicitly exempts the appearance of standing buildings from copyright protection.

Be aware, however, of social norms and cultural expectations. It’s not cool to go up to a stranger on a public bus, push a camera into her face, snap her photo and publish it to the world. Taking close-up photos of children at a public playground is generally frowned upon. Snapping photos on a public beach? It’s OK unless a local ordinance prevents it. Outside the United States, many countries, such as Japan and Canada, have a more restrictive set of laws and societal values.

Exceptions

There are a few exceptions to the general rule set out above.

Private property owners have the right to stop you from taking photos while on their premises, though they have no right to prohibit you from photographing their property from other locations.

Members of the public have limited expectations of privacy in public places. Krages writes: “Anyone can be photographed without their consent except when they have secluded themselves in places where they have a reasonable expectation of privacy such as dressing rooms, restrooms, medical facilities, and inside their homes.”

Shooting public performances and posting them online as a video, podcast or photo gallery is a more complicated proposition because artists own their own creations.

If you post pictures of strangers on your blog, be careful about how you identify them. Writing an accompanying caption that casts someone in a negative or “false light” can invite legal trouble.

Making money off of someone else’s image might get you into legal hot water. Case law is rife with people suing companies and photographers for appropriating their image for commercial gain. If you plan to profit in any way from someone’s image, obtain a model release form. Some people recommend using them even in noncommercial situations.

State statutes also come into play. California has a “right of publicity” law that gives people wide latitude over how their images may be used, though the law has never, to our knowledge, been tested in a noncommercial situation. And, no, you can’t take a photo of Lebron James on the NBA hardwood and use his image to hawk some product on your blog. Adds Wired: “Let’s say you’ve started a blog, and you take a snapshot of someone at a bus stop, then Photoshop it into a banner ad promoting your site. This implies the subject endorses your work, and she could file suit for publicity rights.” Publishing the original photo to Flickr or Photobucket, however, should be all right.

Sources: The Photographer’s Right; Wired magazine; Digital Photography Hacks

Related

Your rights as a photographer

The rules around capturing public performances

Filmmakers’ best practices in fair use

What is off-limits to a documentary filmmaker?

• Wikipedia on street photography

Please comment on, correct or expand upon this article.
JD Lasica, founder and former editor of Socialbrite, is co-founder of Cruiseable. Contact JD or follow him on Twitter or Google Plus.

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