What is the legality of publishing photographs of unwilling subjects in the U.S.?

Factual Questions
1

I fancy myself to be a photographer, and one of my new kicks is to take pictures of random people doing random things without letting them notice. (I know, I know, it’s a good way to get myself beat up if I get caught, but so far I never have.) Now, keeping in mind that this is nothing pervy, like all those Japanese cameraphone pictures taken up the skirts of random women on the subway, I would assume that there’s nothing illegal in taking these pictures. Correct?

But what if I’m ever in a position to publish these things? What is the legality in the U.S. of publishing photographs of people without their knowledge or consent (and the situation is such that you probably wouldn’t be able to find them to get their consent, even if you wanted to)?

2

If it is in public, you might be able to get by if the photo is “editorial” (i.e., newsworthy) in some way, and or the person is incidental to the photo. But if the person is doing something private or is the focus on the photo, and it is not editorial, you could get in trouble if you were making money off it and if they ever found out and if they cared, etc.

3

It’s all in public places, if that makes a difference…not on people’s property or (heaven forbid!) peering into people’s windows or anything.

4

Here is a link to a page on Model Release Forms, and when you need them. At the bottom of the page is a link to a book containing more information than you’d ever generally want to know.

I’ve never published photos with recognizable people in them (recognizable is a key point, BTW), but I’ve heard from friends who have that pretty much all paying sources will insist on Model Release Forms.

I’d suggest getting a stack of $2 bills, dollar coins, or some other cheap-but-unusual currency, and printing out a stack of model release forms. After you take the picture(s), approach the person, and try something like this:

“I’m a hobbyist photographer, and I happened to get a picture of you a few moments ago, which I think is good quality. [[If you’ve got a digital camera, SHOW them the picture.]] I may never do anything with it, but if I ever want to publish it, I’ll need something called a ‘Model Release Form,’ which I have here. This just says you’re willing to let me publish a picture that you can be recognized in. If you don’t mind signing, I’ll pay you a couple of dollars for it. If you prefer, I’ll delete the picture.”

That pretty much covers all the bases, gets active permission, and gives them the option to back out if they like (in which case you wouldn’t want to use the picture anyway, no?). You probably want to keep track of how much you’ve paid out for tax purposes.

5

In general, in the U.S. public appearing in public do not have a right of expectation to privacy. You can take pictures of anybody, you can publish pictures of anybody, with or without their permission or even over their objections.

There are a number of nitpicks and gray areas. After 9/11 photography was banned from various places, including, IIRC, the New York Subway system. You cannot use peoples’ likenesses for advertising or product sales without their permission. And so on.

Legal concerns on street photography from photo.net has some basic-level info that you should read.

6

There are large signs at the mid-way point on the George Washington Bridge. ( nominally the state line between NY and NJ ). It is a large camera in a red circle with a diagonal line through it. Pretty universal, yes? Just in case, it says " No Cameras".

No kidding. Of course, tourists don’t care. I drove into NYC yesterday at 3:10 ish across the bridge and saw a person taking a photo of another person with mid-town in the background. ( Opposed to taking it looking north, so you had lovely and toney Riverdale in the background ). I do not know what happens if you are caught doing such things.

Cartooniverse

7

Yeah, but nobody takes this asinine regulation seriously and it’s not enforced to any particular degree. I still regularly shoot in the subway, often with a tripod. But in any case, it doesn’t really have anything to do with the question at hand, which Expano correctly explained. If its in public, there’s no expectation of privacy and no model release is required.

8

I’m not sure that just being in public gets you off the hook. If you are selling them to be used in advertising, people may claim that you are robbing them of their services. I.e., if you shoot Brad Pitt walking around NYC you cannot use it for advertising or some other purpose. At least, that’s what I understand. Firms will never take stock photos without model release, unless the picture is, again, “editorial” meaning newsworthy in some, even minor, way.

9

No kidding.

The rest of your post - about needing to be “newsworthy” - is still wrong, as it was the first time you posted it. There is no general expectation of privacy in public and newsworthyness does not enter into it.

10

Tell you what: instead of getting snide, try submitting such a photo to a publisher and see what they say. Or, ask documentary photographers why they get model releases (or try to get them at least).

11

One of my former profs is a professional photographer. She’s had this problem before, and usually they’ll either confiscate your film (have a dummy roll handy), or watch you delete the image from your camera if it’s digital. She’s never had any other legal action taken against her.

Robin

12

IANYL, this isn’t legal advice, all standard disclaimers apply:

This link provides a pretty good summary of taking photographs of people in public. This should give you a pretty good idea of what to think for yourself.

13

Let’s review. I provided a cite that backed up exactly what I said. mazinger_z posted a cite that backs up exactly what I said.

You, however, have not given a single cite. This could be because what you say is wrong. Or it could be for other, increasingly snide, reasons. In either case, please provide some cites that say anything other than that in the U.S. people “appearing in public do not have a right of expectation to privacy… [but] There are a number of nitpicks and gray areas.”

14

Now, now Exapno and drhess, chill. You’re both IMHO kinda right. In my experience (as a lawyer) there are two things that get confused when people talk about the law.

1/ There’s the black (or usually somewhat gray) letter of the law.

2/ There’s the practical upshot.

The one sometimes doesn’t directly reflect the other. They are both, in a sense, relevant to legal prudence.

In this instance, the (as mazinger_z’s cite makes apparent) dark gray letter of the law is, I think, what Exapno says.

However, while it may be that “the courts generally agree that anything visible in a public place can be recorded”, what is the practical upshot? Well, let’s look at it from the point of view of a publisher buying a photograph off a photographer for commercial use.

Firstly, they don’t know what you actually did to get the photo. That is to say, if the publisher is sued they have potential evidential problems, regardless of what actually happened.

Secondly, there is potentially a world of pain for the publisher as a consequence of the words “gray” and “generally” as used above. In other words, the publisher may incur costs and delays due to someone suing them on uncertain or even insubstantial grounds, quite regardless of merit.

So while in one sense it is correct to say that (per Exapno) “You can take pictures of anybody, you can publish pictures of anybody, with or without their permission or even over their objections” it is also correct to say that (per drhess) arguably the legally prudent thing to do would be to get a release if at all possible, if you have any intention of publishing.

And I’m not your lawyer, and I don’t practice in your jurisdiction and I wouldn’t act for you even if I did (so there), and I’m not in my field and anyone who relied on this advice would be silly.

15

“So while in one sense it is correct to say that (per Exapno) “You can take pictures of anybody, you can publish pictures of anybody, with or without their permission or even over their objections” it is also correct to say that (per drhess) arguably the legally prudent thing to do would be to get a release if at all possible, if you have any intention of publishing.”

Thanks, princhester. I would only add that it is not legally prudent, but a requirement of doing business. Again, no stock photo company (although this certainly isn’t the only way to sell photos) will take a non “editorial” (which is a very gray area of definition) photo of people without a model release. Of course, it is for the reasons you give, but they will require it, not view it as better than not having one.

As for my “cites,” I would only cite my experience as a stock photographer. :wink: If you want something more concrete, visit stock photography websites and read the submission rules. I also know that documentary photographers carry model releases (“short forms”) around and those I’ve talked to about potentially hires will mention their getting model release forms as a point of skill in getting the job properly done. There’s nothing snide in what I’ve said and I’ve simply noted your slightly hostile tone in your first response to me (also now in your 2nd one). :wink: Peace, love and all that good stuff.

16

There’s a good general guide to this topic here .

As I understand it, you generally have no right not to be photographed in a public place. Exhibit A in support of this rule is the tabloid industry. Celebrities often hate being followed around and photographed, and they have the money to assert their legal rights, and yet they can’t stop the paparazzi.

One important exception is that you generally can’t use someone’s picture for advertising purposes without their consent. That’s why, if you’re shooting for that purpose, you’ll want to get a model release from anyone in your pictures.

There are some tort claims that can be implicated in taking pictures, such as invasion of privacy or “false light” defamation. However, I don’t think that those typically apply to garden-variety photographs of people walking down the street and the like.
*
Standard disclaimer: This is not legal advice, and I’m not your lawyer. If you have a real-life legal problem or question, consult a lawyer in your jurisdiction.*

17

This is the important point. For non-advertising purposes, it’s okay. For advertising or commercial purposes, I haven’t heard of a single agency or publisher that will accept photos taken in public without a model release.