Monday, January 21, 2013

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. 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.

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