Not an Attorney, but ...Model Release and unwilling subject before or after the fact!

Not an Attorney, but ...

August 25th 2008. This is a copy of a 2006 post, copied and re-purposed today! Here, Gary's comments on the legality of street photography is relevant today. This subject deserves updating as people have growing concerns of public safety, supposed security needs and so forth. We enjoy street photography and don't want our rights gradually whittled away! Asher


It is my understanding that you can sell your work as art ... but certainly not for advertising without a release. Mispresentation and invasion of privacy is something else to look out for. If someone is on a public street they are fair game. But if someone runs down an alley or hides in a doorway with the "expectation of privacy" ... then you can't chase after them and stick a camera into their business.

Gary Ayala said:

It is my understanding that you can sell your work as art ... but certainly not for advertising without a release. Mispresentation and invasion of privacy is something else to look out for. If someone is on a public street they are fair game. But if someone runs down an alley or hides in a doorway with the "expectation of privacy" ... then you can't chase after them and stick a camera into their business.

Click to expand...

What if someone objects immediately afterwards, "Did you just take my picture? You have no right to do that! Delete it immediately." What then?

Asher

Depends

As I understand it, you cannot use the image for any commercial purpose without a model release. So for example, I have taken someone's photo on the street, then I cannot use it on my website, which sells my photography services without their consent. In California, verbal contracts are acceptable.

On Thursday, I did some headshots, put them up on my website for the client to proof. He selected and I did some polishing in Photoshop. I was really, really pleased and so was he. Today, he sends me a comment on my website saying take it down - so I did because, well, he is an attorney. Otherwise, I'd have left them. Not worth the legal hassle even though I had consent.

Asher Kelman said:

What if someone objects immediately afterwards, "Did you just take my picture? You have no right to do that! Delete it immediately." What then?

Asher

Click to expand...

I've had this happen. Usually they are jerks who are desperate for self-importance. I am printing up cards that explain a photographer's rights and plan to give them out in such circumstances, and then walk away.

Did Cartier-Bresson have to go around getting his subjects to sign release forms? I doubt it. The world is now so full of loathing and paranoia that photographers are retreating. Helen Leavitt said that she could not have taken her New York photos in today's world. What a shame. It seems that if you are seen with a professional looking camera you are immediately suspected of being a pervert or doing some kind of surveillance.

Different sets of rules

Doug,

You cannot compare rights to privacy in France to those in the USA. Different rights exist - by law. Even from State to State in the USA.

Asher Kelman said:

What if someone objects immediately afterwards, "Did you just take my picture? You have no right to do that! Delete it immediately." What then?

Asher

Click to expand...

As a preface, my knowledge is based upon personal experience and US Law. What I say may or may not hold water in a different jurisdiction.

Firstly, most street photogs know more about their right to "freedom of expression" than your average guy in the street knows of their right to privacy.

As such, very little will be gained in arguing the finer points of Constitutional Law, as the subtleties of such a conversation will be lost and the average street guy won't care or is incapable of caring about the basis of our democracy and republic.

So ... I just shoot and walk. If anyone demands their rights to their image(s) I just walk on ... end of discussion. If I get followed then am I preparred to find or call the police or duck into a restaurant or store where there will be witnesses that aren't going away. I've always been able to handle the situation 100% of the time without law enforcement assistance.

I carry copies of"The Photographer's Rights" in my camera bag, (along with a copy of "Reporter's Right and the Law" left over from by press days). But I've never handed one out, again what's the point, the situation will not be difused until the guy with the camera leaves the scene .. so why prolong the situation ... I just walk.

Over the years I have deveoped a sixth sense as to who will be confrontational and who won't be. Rarely is a shot worth a confrontation ... so just keep walking ...

Here is a shot where my sixth sense failed ... this guy actually grabbed my camera:



As to children ... children have no greater right to privacy than an adult (period). But one cannot argue with a parent ... so once again just walk on ... rarely is a shot worth a confrontation. If the parent threatens you call the cops.



If you're stopped by security personal ... call the cops. If you're stopped by cops ... ask to speak to the watch commander.

Remember, you are exercising your right of free expression over another's right to privacy ... and although you will win in court ... who wants to go to court ... so it is much more expedient just to walk on. The police are not your friend in this situation, because you, an outsider with an expensive camera, is distupting the street. While true you are not breaking the law ... the cop doesn't give a rat's about your Constitutional Right(s). He/she will let the court worry about your individual rights ... he/she has to worry about calming the street down and your camera is elevating the tension of the street. So just walk and shoot ... walk and shoot ... a moving target is hard to hit.

Gary