Is It Rude To Take Pictures Of Strangers?

[Giles]

@pulykamell

Legally, photographers are not allowed to use your photograph without your consent for any purpose. For editorial purposes, yes (and there are even some caveats to that, involving minors and the such). For commercial purposes, absolutely not. To sell as stock, nope.

Well, some celebrities naturally expect their photo to be taken. So, at the same event as I took a picture of a little boy, I took pictures of the state governor, the city mayor, and a lot of dancers, all performing at a free public event. Did they have any reason to think that I should not take their pictures, then post them of a public web site, with a factual description of what they were doing?

I can see problems with using them for libellous purposes (e.g., photoshopping the dancers so it looks like they are dancing naked), or for improper commercial purposes (e.g., adding a caption saying that the governor is endorsing a commercial product, when he’s not). I can also see a problem with using a telephoto lens to take a picture of a person at home, where they can expect privacy. But just taking their pictures at a public event and publishing the pictures is perfectly legal.

[pulykamell]

As for cites, here is the
American Society for Media Photographers take on things:

However, the right of privacy is not absolute. In particular, the courts have long held that news reporting and social, political and economic commentary — the things the First Amendment was designed to protect — are more valuable to society than an individual’s right to be let alone. Therefore, images that are part of the public colloquy about events have usually been exempt from privacy lawsuits. In contrast, the courts have generally held that making money is distinctly less valuable to society than the right to be let alone.

Thus, privacy issues typically arise when an image is used for purposes of trade or advertising. That is, it’s not the picture, but how it is used that determines the need for a release. For instance, an image that is printed in a newspaper, shown in an exhibition or reproduced in a book might well be immune from a privacy suit. But the commercial sale of coffee mugs or t-shirts with the same image would probably not enjoy such protection. An advertisement almost certainly would not be immune.

Therefore, if you are on an advertising assignment, you will need to collect releases from every person in your shots. News assignments are a little trickier. You are always better off if you have permission to photograph your subjects and can prove it. But it’s not always possible to get permission and, in the U.S., you can report the news without it. Lacking a release, however, you are limited in how you can license the image later on.

[pulykamell]

@Giles

Well, some celebrities naturally expect their photo to be taken. So, at the same event as I took a picture of a little boy, I took pictures of the state governor, the city mayor, and a lot of dancers, all performing at a free public event. Did they have any reason to think that I should not take their pictures, then post them of a public web site, with a factual description of what they were doing?

I can see problems with using them for libellous purposes (e.g., photoshopping the dancers so it looks like they are dancing naked), or for improper commercial purposes (e.g., adding a caption saying that the governor is endorsing a commercial product, when he’s not). I can also see a problem with using a telephoto lens to take a picture of a person at home, where they can expect privacy. But just taking their pictures at a public event and publishing the pictures is perfectly legal.

Once again, I am not arguing that. Hence the “editorial use” caveat. Remember, I do this for a living, so I know what publishers ask of me. Business Week won’t ask me for a release. Any stock photo agency will, or will severely limit my ability to sell a photo.

[Nature_s_Call]

I submitted too soon. I also wanted to add this link.

@Dan Heller

You want to get model releases so as to make the photos you sell more marketable to the universe of buyers who may wish to publish these photos in a way that would require a release. The common perception among photographers is that you need a release to protect yourself. This isn’t the case. As long as you disclose the status of your images to licensees, you aren’t at risk. However, the licensee may not license images from you that aren’t released, and that’s why you want to get them. As discussed ad nasueum in this chapter, you don’t need to “worry” about having releases so much as you need to be sure you understand the nature of how the law works and what your responsibilities are. With that, let’s discuss the major components of a release.

In short, the idea behind a model’s release is not because the subject rights to his/her face trumps the photographer’s right to make a buck. It’s because without a release a photographer limits his/her market. Some companies won’t buy your photo without a release, maybe because of their union agreements, or fear of litigation, or whatever reason.

If someone snaps my picture while I’m in a public place and sells it for $1 million, there’s nothing I can do to stop the photographer, and likely nothing I can do to get my cut. If the photographer in that case doesn’t at least give me $100, I would find it extremely rude

[KneadToKnow]

@zev_steinhardt

After a while, one of them came over and asked that I stop taking pictures. Not wanting to offend, I complied with their request.

On behalf of people everywhere who dislike having their picture taken, thank you.

I am constantly amazed at the number of people who take pictures of other people without asking their permission, or (to my mind) worse yet, ask permission and then act as if the only acceptable answer to that question is “yes” and act as if they have been personally attacked if the answer is “no.”

To those people (not necessarily the OP):
Some of us do not like having our pictures taken. Some of us have not known you long enough to tell you why. If you point your camera at us, and we respond as though you were pointing a loaded gun, please spare us both a lot of grief, and pick on someone else. Thank you.

[pulykamell]

@Nature's Call

Some companies won’t buy your photo without a release, maybe because of their union agreements, or fear of litigation, or whatever reason.

It’s fear of liability, and it’s addressed in the ASMP article and privacy lawsuits have gone through the courts and found against the photographer in cases of people’s photographs being used for commercial use. I don’t have the court cases in front of me now, but these have been tested.

There is also the right of publicity, which applies to celebrities. I can’t just take a picture of, say, Angelina Jolie and start selling a bunch of products with her image on it. Was it legal for me to take her picture? Most likely. Will I get my ass sued off or at least a cease and desist if she gets wind of it, you betcha.

So, once again, your right to photograph someone and how you can use that photo are two very distinct things, legally.

[mhendo]

@KneadToKnow

If you point your camera at us, and we respond as though you were pointing a loaded gun…

You’ll put your hands in the air?

Return fire?

Piss your pants?

[KneadToKnow]

@mhendo

Piss your pants?

You’re getting warm.

[Kalhoun]

@Antinor01

It’s hard to describe really. I’m a fairly private person overall and it feels like an invasion of my space. I would liken it to a stranger sitting and staring at me or obviously listening in on my conversations. That person isn’t actively causing me harm either but it feels invasive. They are coming into my life uninvited and I don’t care for that.

You know, you could look at it as you walking into their life uninvited. I mean, we’re talking public spaces here. There is no expectation of privacy. People will look at you, walk within your eyesight, hear things you say, etc.

[pulykamell]

@Nature's Call

I submitted too soon. I also wanted to add this link.

In short, the idea behind a model’s release is not because the subject rights to his/her face trumps the photographer’s right to make a buck. It’s because without a release a photographer limits his/her market. Some companies won’t buy your photo without a release, maybe because of their union agreements, or fear of litigation, or whatever reason.

If someone snaps my picture while I’m in a public place and sells it for $1 million, there’s nothing I can do to stop the photographer, and likely nothing I can do to get my cut. If the photographer in that case doesn’t at least give me $100, I would find it extremely rude

And to clarify even more, to be absolutely precise. You can sell your photograph to anyone you want. However, whoever buys that photograph will not be able to commercially use it (as in an advertising campaign) without a model release.

Also, I use some of my photographs for self-advertising. I have to get a model release signed to protect myself because I use images of people I have shot on my website for my own commercial use. Without a model release, I could, if someone were so inclined to, be litigated against for such use.

[Kalhoun]

@pulykamell

On reread, I think my stess of “any” may be confusing. I mean that they can’t just take and use your picture for any reason they want. There’s specific usages, such as commercial use, that require model releases. I can’t just take a picture of you in the street and use it in a nationwide advertising campaign for Hagen-Dazs without your permission.

What if you want to put that photograph in a gallery? Or what if you do an artistic treatment to the photo (to use Andy Warhol’s Marilyn Monroe photos, for instance). If this person is not a “famous personality” per se, can I alter the image and then use it? Where is the line drawn?

[Antinor01]

@Kalhoun

You know, you could look at it as you walking into their life uninvited. I mean, we’re talking public spaces here. There is no expectation of privacy. People will look at you, walk within your eyesight, hear things you say, etc.

Those things are all true. There is a difference between accidental and intentional though. The person who happens to catch something I say as they walk by is not the same as the person that sits there looking at me while I have a conversation. By the same token, the person who happens to catch my in their photo of the Tonight Show studio is not the same as the person who specifically chooses to photograph me. I’m not sure how else to explain my meaning here. The OP asked for opinions on if it was rude to photograph strangers and I have explained why I feel it is.

[pulykamell]

@Kalhoun

What if you want to put that photograph in a gallery? Or what if you do an artistic treatment to the photo (to use Andy Warhol’s Marilyn Monroe photos, for instance). If this person is not a “famous personality” per se, can I alter the image and then use it? Where is the line drawn?

Talk to your lawyer. I do not know exactly where the line is drawn, as I don’t deal with fine art photography. If you’re interested, relevant reading can be found here.

[Nature_s_Call]

@pulykamell

And to clarify even more, to be absolutely precise. You can sell your photograph to anyone you want. However, whoever buys that photograph will not be able to commercially use it (as in an advertising campaign) without a model release.

I think you and I are pretty much on the same page. Someone as a photographer has very loosely fettered rights to take pictures, use them personally however they see fit, and sell them. The buyer of these photos, as a publisher has more to worry about. If the photographer switches hats and acts a their own publisher, they also switch worry-sets.

[furt]

A propos

Three weeks later, Stokke has decided that control is essentially beyond her grasp. Instead, she said, she has learned a distressing lesson in the unruly momentum of the Internet. A fan on a Cal football message board posted a picture of the attractive, athletic pole vaulter. A popular sports blogger in New York found the picture and posted it on his site. Dozens of other bloggers picked up the same image and spread it. Within days, hundreds of thousands of Internet users had searched for Stokke’s picture and leered.

The wave of attention has steamrolled Stokke and her family in Newport Beach, Calif. She is recognized – and stared at – in coffee shops. She locks her doors and tries not to leave the house alone.

Teen Tests Internet's Lewd Track Record

[pulykamell]

@Nature's Call

I think you and I are pretty much on the same page. Someone as a photographer has very loosely fettered rights to take pictures, use them personally however they see fit, and sell them. The buyer of these photos, as a publisher has more to worry about. If the photographer switches hats and acts a their own publisher, they also switch worry-sets.

One more caveat. You have to make sure that the publisher you sell it agrees to indemnify you against any damage from the picture. This is quite often not the case, so it still ends up being your ass on the line.

Cover. Your. Ass.

More info:

Q: If I take a picture of a seedy neighborhood and a magazine editor writes a caption describing it as a red light district, can I be sued for defamation by someone shown in the picture?

A: Yes, which is why your paperwork with the magazine has to make it clear that there is no model release (if there is none). Ideally, the magazine should agree to indemnify the photographer against any damage from publishing the picture, since the magazine is the one that controls the use of the photo, and it is the use — not the photograph — that creates the liability. Unfortunately for photographers, in today’s world, that seldom happens.

And, having looked at contracts even for editorial publications, I can absolutely attest that the publisher almost always invariably wants to pass the buck to you, the photographer, if they are sued because of your photographs. You have to negotiate that clause out, or assess your risk of being sued.

[Kalhoun]

@pulykamell

Talk to your lawyer. I do not know exactly where the line is drawn, as I don’t deal with fine art photography. If you’re interested, relevant reading can be found here.

Hmmm…I am concerned more with fine art photography; I can understand how publication (particularly with an accompanying text) could be an issue in the case of magazine photography. This portion of your cite leans toward what you were saying:

In a similar case, Clayman v Bernstein, 38 Pa D & C 543, (1940), a doctor took photographs of a patient while the patient was semi-concious. This court likewise found in favor of the plaintiff patient. The doctor claimed that an invasion of privacy was not present without publication of the photos or other improper use but the court disagreed. The court stated:

that an individual has the right to decide whether that which is his shall be given to the public and not only to restrict and limit but also to withhold absolutely his talents, property, or other subjects of the right of privacy from all dissemination, that the facial characteristics or peculiar cast of one’s features, whether normal or distorted, belong to the individual and could not be reproduced without his permission, that even the photographer who was authorized to take a portrait was not justified in making or retaining additional copies for himself, and that unlike the law of libel which required publication to a second person, one’s right to privacy could be invaded by a single human agency. The court explained that the patient’s right to decide whether her facial characteristics should be recorded for another’s benefit or by reason of another’s capriciousness had been violated, that the scope of the authorization defined the extent of the acts necessary to constitute a violation, if the patient had consented to have her photograph taken only for the doctor’s private files certainly he would have had no right to exhibit it to others without her permission, so, the court queried, could it be said that his rights were equally extensive when even that limited consent had not been given? Moreover, the court continued, if the film had been developed by one other than the doctor himself, even though the negative had not been printed, the mere development would constitute publication even if the established standards of the laws of libel were adopted, and the taking of the photograph for the purported purpose of establishing a medical record gave rise to a presumptive intent not only to develop the film but to print the negative and exhibit the print. In rejecting the argument that a physician was privileged to take photographs of his private patients without their consent as part of his medical record, the court said that it might be conceded that to an extent there was an implied waiver of the right of privacy in the relationship of physician and patient, but that there could never be a waiver, either expressed or implied, of any right without knowledge and consent and any such waiver was limited thereby. Phillip E. Hassman, J.D., 86 A.L.R.3d 374, (1996).

However, this part seems to support what I was saying:

In many cases alleging intrusion upon an individual’s solitude or seclusion, the plaintiff’s case is lost when the defendant shows the plaintiff had no reasonable expectation of privacy and / or when the plaintiff fails to show that the defendant’s alleged intrusion was highly offensive to a reasonable person.

So…if I’m at an outdoor concert and I see Antinor in an interesting stance and take a picture, he probably wouldn’t be able to persuade a jury that any harm was done.

If I were to recreate that photo on the side of a building, with no text or implication other than artistic merit, and if I don’t make any money off it, does he have a case?

[Lush_Puppy]

Well, this whole business isn’t really about the law, is it? The question is if it is rude or not. I could subject you all to my horribly loud and out of tune singing on the subway but I don’t because I don’t want to:

[ul]
[li]annoy you[/li][li]encroach on any of your liberties[/li][li]make you a captive audience member[/li][/ul]

For the record, I absolutely hate having my photo taken by anyone (amateurs and pros). I even quietly move out of the group photo shots during birthdays and whatnot.

[Kalhoun]

Well, with regard to rude, I’d say not. At least, not in a public, anonymous setting. I think that if someone at the birthday party doesn’t want their picture taken, well…I think it’s strange but I’d abide by their wishes.

[Lush_Puppy]

Well, I admit I’m strange, but not liking my photograph taken is not the reason.

And I am hardly alone. I can always count on 2 or 3 people in the group to maneuver out of the shot too. OTOH, I have a handful of friends who are always camera-ready and will jump over tables to get into every shot.

Different strokes.