While that’s generally true in the US, I hasten to add, however, that different states have passed their own laws regarding personal privacy, and the laws of other countries often are considerably different than the US, so you need to know the laws in your specific location.
The “rule of thumb” above, has to do with taking photographs, however, not using them.
After the photo is taken, new concerns of privacy come into play, and one’s person right of publicity. For example, generally, a photographer violates a person’s right of publicity when, without permission, the photographer uses a photo of a person for the photographer’s own benefit, sometimes referred to as “commercial” use as opposed to an “editorial” use. Like many concepts in law, this one isn’t precisely straightforward.
Courts have recognized four major branches of privacy law with regard to photography:
- unreasonable intrusion upon seclusion,
- unreasonable revelation of private facts,
- unreasonably placing another person in a false light before the public,
- misappropriation of a persons name or likeness.
Obvious actions photographers sometimes take which may violate “intrusion” include trespass on to private property, using hidden cameras, and fraudulently entering private areas to take photographs.
The courts have also ruled that even when on public property, you may not violate a person’s privacy via intrusion. For example, bringing a ladder, or climbing a tree to photograph someone behind a fence is general an intrusion violation.Private Facts — This is one of the least understood privacy issues by photographers, but with one example, I think I can help. In the Society Hill section of Philadelphia, many homeowners don’t put blinds, curtains or shades in front of their windows, so people can look in and see how they’ve restored their home as it looked in the 18th century. Nevertheless, they don’t necessarily relinquish all their privacy rights by that action.
If a photographer takes a photograph through the window, of a person which shows they have AIDS, who normally covers up the evidence of the disease when in public, and posts it in their web gallery, they may be revealing a “private fact.”
False Light — This one is straightforward. You can put your subject in a false light which is highly offensive to a reasonable person, or recklessly disregard the falsity of the publication of the photo. Typical problems occur when you “Photoshop” the image, perhaps adding a cartoon nature to the subject, or put in a misleading caption.
Misappropriation — This is the easiest to understand. This is essentially when you use someone’s image for commercial purposes without their consent.
Commercial vs. Editorial Use:
Editorial Use — For a photograph’s use to be considered an “editorial” use it needs to be considered “newsworthy.” Note that I am using the word “newsworthy” as a legal term. “Newsworthiness” is a protected 1st Amendment right. The courts has historically construed it broadly.
Traditionally, photographs have been considered “newsworthy” when they include all kinds of educational, factual, and historical data in all phases of human activity including fine art, displayed in galleries and books.
Posting photos of your local block party in your gallery on the Internet is normally considered to be an editorial use. If someone sells prints of you and others riding a roller coaster at an amusement park, they don’t need your permission.
Commercial Use — Simply put, commercial use of a photograph generally occurs when a photograph of a person is used for advertising, endorsement, or trade purposes.
This doesn’t mean that any photograph of a person sold for profit, is a commercial use of the photograph. As stated above, for example, use of a photograph in a book or a sale of a photographic print from a gallery is not normally considered a “commercial” use.
If you use a photograph of a person for commercial purposes you need their permission. You get that through a “model’s release.” Even “amateur” photographers often need a “model’s release.” If one enters a photograph of recognizable people in a photography contest, I strongly suggest you have a model release on hand. Some courts have considered that a “commercial” use on its own, and generally, if you win one of the prizes, your photograph will definitely be used “commercially.”
Even if you use a photograph of a person editorially, you might want to get their permission through a “model’s release.” For example, I don’t use the recognizable image of a child in my photographs without their parent or guardian’s permission via a “release,” if the child is the subject of the photograph. If the child is part of a general crowd in the photograph, I don’t seek permission.
If you might manipulate the photograph of a person in any way, you should consider getting a release too. An example would be changing the background, or “Photoshopping” the physical appearance of a person in the photograph in some way.
How do I obtain releases while traveling or out on the street:
To start, you’ve got to go up to your subject and ask permission to take their photograph. If you’re shy, that can be difficult, but to be safe, you’ve got to get over that.
Generally, I’ve found that most people are flattered you wish to photograph them. For a release to be legal, you have to give the person something of value for their permission. I normally offer to send them a copy of the photograph I’ve taken, and if I use the photo, where they can see it. That usually does it.
I used to carry around a pad of “model release” forms. They were short and to the point. I explained them, put in the person’s contact information, signed them myself, then had the person sign them.
Today, I use an easier solution. I use the iPhone app, “Easy Release” by Application Gap. As long as the iPhone’s memory holds out, I can store hundreds of releases before I have to off load them. While “Easy Release” comes with an excellent generic “model release” it also enables me to use the precise language in the release which my attorney has approved.
Through “Easy Release” I’ve already inputted my information and logo. Once the person agrees to sign a release, I can put their contact information, and the photo location information into the form easily. They we both can sign the form directly on the iPhone electronically. I can even embed a iPhone photo of the person right into the “release.” Once complete, “Easy Release” will generate a pdf (Adobe Acrobat) of the “release” and if you want, email a copy both to you and the person you’re photographing. It couldn’t be easier.
Your legal safety in printing, publishing (in contests, for example), and posting your photographs to your web gallery is really up to you. You need to know the appropriate law, and then make a decision as to how much protection you need by having model releases, etc.
Carolyn Wright, an attorney who specializes in photography/arts legal issues reports that there was a recent case in New York where the court determined the use of a woman’s photograph for a fiction book cover required a model release. This ruling is at odds with other case law in NY, where the courts have consistently ruled photographs of a person used for a news article doesn’t require a release. The lesson here is it’s always safest to get a model release when using a photograph of a person.