Release Me (Part 3 of 3)

So here we are at the last of three installments about Candid photography. We looked at tips to get the photos, the issue of permission and now we wade into the muddiest of all issues, in my opinion, Model Releases. Let me say again this is my understanding of the issue and is not intended as gospel or legal advice.

Some photographers may be missing out on a profitable aspect of their business because they are not marketing photos for which they don't have releases and others may be spending an exorbitant amount of time obtaining and maintaining releases they don't really need. Let's first look at the types of images when it comes to the need for a model release. When I say "types" I am referring to the use of the image whether that is the initial intended use or ultimate final use. A photo's intended use is the primary governing factor that determines the need for a subect's permission (release) before profiting from their image.  Usage falls under several broad categories: fine art, journalism or editorial, and commercial, each of which has their own set of rules regarding model permission or releases.

Fine Art

© David Toczko

If you intend to exhibit your images as fine art, you do not need a release. One exception to this is if the image is of a minor, in which case you would need the parents' permission. Examples of this could be portfolios (hard copy or online), gallery exhibitions, books, art fairs, etc. Selling prints of those images at a show is also generally considered legal. However, if you intend to make posters of the prints to advertise your show, you are using the images for "commercial" use and would need to have a model release.

Editorial Use

© David Toczko

In general, you do not need a model release for photos taken in a public place (where the subject has no expectation of privacy) or for photos that are considered 'news'. You also do not need a model release if you intend to sell your photos for editorial or illustrative use to newspapers, magazines or any other publishers except in the case of corporate which may be considered advertising. Proper and accurate captioning is strongly advised. The photo on the right was taken at a public event and used in a local newspaper article about that event. In this case, a model release is not required. Photos used in an advertisement in those publications would require a release (see below) Even photos intended for editorial use can put you at risk, though; especially if a candid subject decides that you have presented them in a negative light as we discussed in Part 2. 

Commercial Use

The moment you license a photograph to sell something....anything, it falls under the heading of commercial use (even if you are licensing it to yourself), and you will need a model release.  Basically, the only time a release is needed is if a person can be seen as supporting, promoting or advocating an idea, product or service. If the photograph is of a child, you will need one and preferably both parents' permission to use the image commercially.

Our culture has become so "sue happy", many stock photo agencies require model releases for all images submitted to them for possible sale. This is also a growing trend when it comes to photo contests. That is their policy and not the actual law. Another aspect of this requirement is because most images sold by stock agencies are for commercial use (advertisement) by the client who purchases it from the agency. In addition, regardless of the intended use it is a good idea to ask a parent not only for a release, but also for permission any time you take a picture of a child. Because you never know the final, ultimate use of a photo when you press the shutter, keep a few releases handy. They will not add much weight to your gear bag, and you never know when you'll create the next iconic image. Having those releases will allow you to not limit how you can use the images and can save you a lot of work and headaches later.  

I hope this series has answered a few of your questions. Don't let all these issues keep you from taking a photo, but keep them in mind when it comes to how you are going and can use it. Until next time....happy shooting!

Do I Need Permission? (Part 2 of 3)

In my last post, I talked about tips for Candid/Street Photography. I also mentioned there may be certain legal considerations to such a venture. In this second of a three-part series, I'll talk about the need for the subject's permission to photograph them. This is rather "high-brow" stuff and not the typical lighthearted posts I make, but since I opened the can of worms in my previous post, I feel it is important I discuss it. Now...in full disclosure and as a disclaimer...I am a photographer, NOT a lawyer. The following is my interpretation of information obtained from numerous reputable sources and the basis under which I work. Please do not take it as carved-in-stone legal advice. 

There is an intrinsic "right to privacy" in our culture and infringing on a person's privacy can be broken down into four basic types:

"Invasion of privacy" or "intrusion upon another's seclusion." 
It happens when someone actually intrudes upon a person's private domain in a way that would be considered offensive to the "average" person. This could be inside their home or other places where privacy is expected, even when the photographer is standing in public. As a photographer, the act of going on someone's land without permission would violate this privacy even if they don't take a photograph.

Public disclosure of private facts. 
This law is difficult to enforce and rarely applies to photographers. If the disclosed information is true, courts usually find that First Amendment interests outweigh privacy rights. It requires disclosure of what an ordinary person would consider private facts when an ordinary person would consider the disclosure offensive. 

Portrayal of a person in false light. 
This happens often with photographs, but usually because of the caption. It requires someone to be publicly portrayed in a false manner in which an ordinary person would find the portrayal offensive. To be liable, the publisher of the photograph must have known or "recklessly disregarded the probability" that what is being represented is false. It is similar to defamation, when someone's reputation is damaged by a statement that is known or should be known to be false. False light does not require that the person was damaged.

Right of publicity.
This right of privacy is very different from the other three. It is the commercial appropriation of someone's name or likeness without permission, or misappropriation. It happens when someone uses the name or likeness of someone without their permission to gain some commercial benefit. It usually occurs when a photograph of a person is used in an advertisement without the person's permission. In this case, a "Model Release" is required. Permission is not required for editorial or newsworthy publications.

© David Toczko

Before we wade into the model release debate (the subject of Part Three of this series), let's take a look at the main point of this post...whether you can take a photograph of someone in public (candid or otherwise) without their permission. The simple fact that someone is in a public setting, has been interpreted as them giving up their right to privacy and, therefore, you do not need their permission to photograph them. Knowing that is one thing, getting "caught" by your subject and them objecting to it is another. Most people don't mind (and even enjoy) having their photo taken. Some even ask! Those who do take exception can range from folks who simply ask you not to photograph them to some who can get quite belligerent about it. In these cases I take the attitude that discretion is the better part of valor and you should comply with their request. I see no merit in arguing with them about the legalities of the situation. 
Now let me say right here, I am not a person who wraps himself in the First Amendment and goes out hell-bent on taking candid photos. Sometimes it's just not practical or even possible to ask for permission. Just because, technically, I don't have to ask permission does not mean I never ask. I try to be as respectful and sensitive to my subjects as I can. I certainly don't harass a subject, following them around unmercifully...almost stalking them. In extreme cases, this can be considered an invasion of privacy. It is my opinion behavior like this is but one thing that gives photographers a bad name. Use the "Golden Rule" and treat your subjects as you would want to be treated.

© David Toczko

Some argue that by asking permission, you lose the "candid" nature of the photo. One fellow photographer has a unique "M.O.". If he sees an interesting subject, he will approach them and, using whatever reason comes to mind,  ask if he can photograph them. After getting their permission and a few posed shots later, he will share the shots with his subject in the screen of his camera. He may even get their email address and send them a copy. Then he fades off into the sunset of their attention and the real photography begins. Remember, they have already given him their permission so any additional, candid images are also taken with their permission. A creative, but not required, end-run around the issue.

Must you obtain permission to photograph someone in public? The simple answer is "No". Should you get their permission? If it is possible, I say "Yes". It may help you avoid a public scene and, in many cases, you may even make a new friend. Keep in mind the USE of the candid photographs you take can be restricted by certain privacy rights. More on this, and model releases in my next installment on the subject.

So You Want To Be a Sniper

It's known by many names, Candid Photography, Urban Journalism, and my favorite, "Sniper" Photography. Capturing photographs of people in their element, doing the things they like best (or just being themselves) can be both rewarding and challenging. It can also result in some really awesome photographs. So how do you get that cool shot? Here's a few helpful hints....

Blend In
Sniper photography is not the time to make a fashion statement. Wear bland, generic, vanilla clothes. No florescent T-shirts with pictures or "cute" sayings on them. I'm not talking about showing up in a Ninja outfit. That, in itself, is going to call attention to you. Dress so as not to stand out. An extreme example would be don't wear a tuxedo to a rock concert or don't show up to a black-tie affair in a Hawaiian shirt and sandals. Know your venue and dress appropriately and even then, dumb it down. Be the "Plain Jane" in the crowd.

Become "White Noise"
Even though your clothes won't attract attention, the simple fact you are walking around with a camera will. How do you overcome that? The answer may be counter intuitive. "See and be seen". Walk around...take (or pretend to take) photos of other things. Signs, flowers, statues...whatever. After a very short time, you will become old news and just another face in the crowd. People's attention spans are very short and once you have been "seen" their attention will be off to the next new thing. 

Go "Long"

© David Toczko

You are not going to get a natural, spontaneous photo if you are in your subject's face. You will need to be some distance away and certainly not in their personal space. In order to do this, a "long" lens is  essential. I shoot these types of photos with at least a 70-200 mm or (even better) a 100-400 mm lens. I am far away enough to be under the radar, but can get the close-up I want. Don't worry about that big dog lens you are packing. They have seen you, seen you "taking" pictures and have moved on. 

Be Patient...Be Observant...Be Ready

© David Toczko

There has to be a reason you want to photograph this person or persons. Is it their looks? Is it what they are doing? Is it what they are NOT doing? Is it the way they are interacting? Watch them...watch what they are doing...try to figure out "their" story. Who are they? Why are they there? Why are they doing what they are doing? You don't have to be right about this, but it will help you anticipate what they will do next and prepare you to get the shot. Think "wait and watch" at this stage. Once you get a "feel" for your subject, watch them through your view finder and be ready to shoot. Have your settings worked out. Have your subject focused. I usually have my shutter button pressed halfway down so as to be as ready for the shot as I can be. If you are afraid you are going to miss that perfect moment, you can set your camera on a burst mode and take several shots in sequence. Be aware this may "blow your cover" and call attention to you once you have fired off a series of shots either by your subject or other potential subjects around you. 

Be Aware

© David Toczko

Even though you have "stalked" a subject, you have watched, you have waited, you have made up "their" story in your mind and you are ready for the kill, there may be something that just "happens" that will provide a good, and sometimes even better, shot. Be aware of your surroundings and what is going on. Keep your head on a swivel and be prepared to break on the shot you are waiting for and grab another, spontaneous moment. You can always go back to your main subject and this may provide even more cover for you.

"Sniper" Photography can result in some of your best images. You'll be able to capture people as they really are. No poses, no stiffness and let their true personality shine through. This, just like all types of photography, takes practice and patience. It also comes with some legal considerations. I'll give you my take on the need for model releases and other "CYA's" in my next post.