What are your rights and risks?
BY AARON M. ARCE STARK
Street photography comes with
some degree of risk. Because
photographers often seek to capture
life in its purest form, they do not typically
warn people or obtain consent before
pressing the shutter. As a result, some people
file lawsuits, not only to stop distribution or
display of the photograph, but also to claim
or negotiate in settlement monetary relief.
Nothing prevents someone from filing a
lawsuit; not even the fact that, in some cases,
street photography qualifies as protected
speech under the First Amendment of the
United States Constitution. Moreover, any
fight in court comes at a cost and involves
uncertainty. To minimize the risk of being
sued, some familiarity with relevant laws may
INVASION OF PRIVACY LAWS
Generally, claimants suing photographers
over street photographs invoke invasion of
privacy laws, which are primarily based on
allegations that something private was: ( 1)
improperly intruded upon and/or made public;
( 2) misrepresented to the public; or ( 3) used for
someone else’s personal gain.
Each state has its own invasion of privacy
laws, so what is legal or illegal may vary by state.
It is, therefore, important for photographers
to become familiar with the laws of the state
(or country) in which they photograph. As
highlighted here, when shooting street
photography, photographers should also bear
in mind where the photograph is being taken,
what the intended use of the image will be, and
whether to secure consent by the subject.
THE PUBLIC/PRIVATE DISTINCTION
Asserting a claim of invasion of privacy most
often requires the claimant’s privacy to have
been compromised in some way. In general,
one cannot have a reasonable expectation
of privacy in things that one holds out to the
public. This is why courts have determined
that taking a photo of someone in public
does not invade one’s reasonable expectation
of privacy. However, simply because a person
holds themselves in plain sight does not
alone render legal claims easily defeatable.
Courts will often (sometimes even wrongly)
give the claimant the benefit of the doubt
and move the action towards trial, making the
path to victory more costly, and perhaps even
Complicating the public/private
distinction even more are the technological
advancements of other photography
capabilities, such as the use of drones,
which enable the photographing of people
in places and ways they may not expect.
Therefore, what courts may consider to be
in the public or private view changes with
time and among judges and jurisdictions.
Photographers must know that these
distinctions may change and are not always
consistently defined or clear.
USING THE IMAGE
How a photographer uses an image can affect
whether courts deem the photograph and
its use as protected speech under the First
Amendment, defensible for other reasons or
not protected at all. Laws often draw these
distinctions by first determining whether the
photographer’s use of the image is non-commercial or commercial.
The First Amendment most clearly
protects photographers when they use
their images for purposes that are deemed
non-commercial. The Supreme Court has
stated that speech intended for commerce
(or commercial speech) has less protection
under the First Amendment. But what is the
difference between commercial and non-
Courts interpret for themselves whether an
image is being used for a commercial or non-commercial purpose. Most courts would likely
deem using an image to promote a product
in commerce (such as in an advertisement)
commercial speech, which generally,
depending on context, gets less protection.
Featuring the image in a news publication,
on the other hand, or displaying it as a piece
of art—even if made available for purchase—
are uses that courts would likely label as
non-commercial. The distinction between
commercial and non-commercial speech,
however, is not always clear. Sometimes what
the photographer intended at the time the
image was used may affect the outcome of
this decision. Several different factors may
persuade a court one way or another.
OBTAINING CONSENT (OR NOT)
When photographers take a photo in public,
they have the option to seek consent from
their subjects. While obtaining consent to
photograph anyone in public (even minors)
is not legally required, it can go a long way in
preventing and defending against a lawsuit
for invasion of privacy. The subject can give
consent verbally or by a written model release.
However, if a photographer decides against
obtaining consent, it is possible, in some
instances, that consent may be implied. For
example, a court may find that someone has
given his implied consent if he poses for the
photographer or sees the photographer taking
the picture but does not ask him or her to stop.
In the end, it’s always best to seek legal
advice if a claim is ever made against your
work. Having a sense of what your attorney
needs to know can help you sort out how to
prepare for any possible battles.
Aaron M. Arce Stark is a Washington, D.C.-based attorney. Send him your topics at