SNAPSHOTS: Is It Legal?
I’ve created street photography in a public space in the United States
that has people in it. Will I break the law by distributing or sharing
Is It Legal?
GOT A LEGAL QUESTION?
First, I think it’s important to define what street
photography is. In general, it is the candid taking of
photographs, usually of strangers in a public space.
Rather than documenting news, street photography
places the emphasis on documenting ordinary life. Dating back to when
cameras first became portable, street photography was made popular
by prolific artists like Henri Cartier-Bresson, Walker Evans, Robert Frank,
Garry Winogrand, Lee Friedlander, Vivian Maier, Helen Levitt and Joel
Meyerowitz, to name a few.
You don’t actually need to be on a street to make street photography;
you just need to be in a public space. Since the goal of street
photography is to capture their
subjects unaffected by their
presence, most street shooters
try to stay unnoticed. It is the
art of capturing a moment and
the freedom of taking an image
(or recording a video) based on
serendipity and chance.
In the United States, there
are very few rules you need
to know when taking a candid
photograph or video. Because
the First Amendment to the
United States Constitution
provides broad freedoms
of the press and freedom of
expression, a photographer
does not need permission
from the subject when taking the photograph or filming in a public
space. These photographs are “expressive works.” Even though
individuals do have certain privacy rights in the United States, these
rights are predominately state laws, and no state can restrict a person’s
fundamental First Amendment right of free expression, including
creating photographs and documentary films.
Some states have restrictions on how you can take a picture, for
example, prohibiting the use of a zoom lens or other device to peer
deep inside a house or behind a fence. This prevents people from taking
pictures in a place where there’s a reasonable expectation of privacy.
The general rule is that if you can see the subject from a public place,
you can take a picture without their permission and without seeking a
written release. If you are asked to stop, you should obey the request.
But if you are in a public place, you generally cannot be required to stop
taking pictures, turn over your camera or delete film.
However, the fact that you do not need permission does not mean
that you shouldn’t ask. If the moment is fleeting, permission from the
subject may not be possible, but respect for your subject is never wrong.
Alternatively, some cities and federal or state parks require permits if
your photography or filming is considered “commercial” and may impede
on the general public. For example, if you have assistants, models and/
permit. However, most 'street' photography is taken with discreet
cameras and would not have the same commercial shoot requirements.
Now let’s say you’ve already created a piece of work in a public place.
What can you do with it? As a photographer, your rights regarding
reproduction and use of your photographs are controlled by a federal
statute, the Copyright Act. While state privacy laws cannot restrict
uses of photography that fall under freedom of the press or freedom
of expression, states can protect the right of an individual to prevent
commercial appropriation of his or her likeness, as depicted in the
photograph or video you have taken.
This right is sometimes referred
to as the right of publicity or
right of privacy. Without model
releases from the subjects, you
cannot license the content for
advertising a product or service,
or allow an image of a recognizable
person to be sold on mass-produced t-shirts, for example.
Laws restricting commercial
appropriation do not limit you
from exhibiting, displaying or
selling a photographic print as
a work of art, or publishing the
work in a book, magazine or blog.
Similarly, video can be exhibited
or displayed and included in a
documentary. The fact that you
sell the book of your work or the art prints, and may make a profit, does
not make those uses commercial. If the use is protected by the First
Amendment, you can sell and promote the product.
In the case of documentaries, if you are telling the story of a
particular person or persons, and following them over a period
of time, it is recommended that you obtain an appearance release
from each main subject. This will make obtaining insurance to distribute
your film easier, and prevent requests from the subject to review the
film or have control over the final cut. This would not apply to fleeting
persons in the background. In addition, if filming, try to avoid music,
broadcast, radios, murals or other public art in the background that’s
more than incidental because it may require additional clearances. EDU
This article is for informational purposes only. It is not
intended and should not be construed as legal advice. Contact
Nancy E. Wolffis a partner at Cowan, DeBaets,
Abrahams & Sheppard, LLP. Her practice focuses
on intellectual property and digital media law.
The fact that you do not
need permission does not
mean you shouldn't ask. If the
moment is fleeting, permission
from the subject may not be
possible, but respect for your
subject is never wrong.