>There is no right to privacy in a public place by definition.
Not necessarily true; it depends on what the courts decide is a public place
and not what the photographer or the
"man-on-the-street" defines as a public place. The courts, at least in the
US, base their definition on a number of factors including if the person has
a legitimate expectation of privacy even if it is a public place ( i.e., a
public toilet). While one may not on each and every occasion need a
release, there are circumstances where a street photographer might need a
release even for art based on privacy laws. For instance, if you shoot from
a public street or place into the doorway, window, or courtyard of private
property - and especially if you take a photograph of someone in the private
building or courtyard, then you might need or be best advised to obtain a
property and/or model release if you are going to display and sell the
photograph even as art. You might get away with displaying and/or
publishing the photograph as journalism or news; but not as likely as art if
the subject sees it and objects. Another example, might be shopping malls
or hospitals which the public often treat as public places but which are
technically private property. Leaving aside violations of trespass laws
which might take place if you did your shooting within the confines of such
locations, you could be considered to be evading someone's privacy if you
take their picture in those locations for public display or sale.
That street photographers have gotten away with not having releases and not
being taken to court does not mean that they can't be taken to court for not
having a release and invading the subject's privacy if the subject sees the
image and objects. It also does not mean that a court will not find you
guilty of invasion of privacy on such occasions if they so choose. I am not
saying that such legal actions are common or always won by the subject; but
I am saying that there is a possibility and that there have been cases in
which artists have been taken to court for invasion of privacy for
exhibiting and selling images of people as works of art without their
permission. In a number of those cases, the artists have lost.
Indeed, there have been some photographers who have taken candid images of
people which were published in books long after the pictures were taken who
did not have releases only to find that after publication when the subject
saw the picture of themselves they took legal action for invasion of privacy
or, in some cases, the family or heirs of a subject who has died will bring
legal action on behalf of the dead person or themselves on those grounds
(even celebrities and their executors and inheritors have done so).
I do agree that such legal actions were less the case in the past than they
are now in the information age where everyone realizes their identity and
image is worth money as a commodity.
>> If the subject is recognizable and your
>> artwork defames their reputation and /or character or implies something
>> untrue or that they find objectionable, you could be open for slander and
>> defamation legal actions as well in the U.S. and maybe in Canada.
>Indeed, and a release won't help you with that.
If you know for example that you will portraying someone as a drunk who is
not a drunk by implication (i.e., showing the image of that person in a art
show titled "Images of Drunks" which contains mostly images of real drunks),
you could try and get permission by way of a release to show that image in
that show from the person. If they signed the release, chances are that you
would be off the hook for defamation or slander even if the person should
later change their mind. In short there are some occasions that a release
might protect you from such legal actions.
[mailto:firstname.lastname@example.org]On Behalf Of Johnny Deadman
Sent: Saturday, May 19, 2001 10:30 PM
Subject: Re: filmscanners: OT: photographing on the street
on 5/19/01 10:57 PM, Laurie Solomon at email@example.com wrote:
[re needing or not needing releases for 'art']
> You do in the U.S. if the person is recognizable and you do not want to
> sued for invasion of privacy.
There is no right to privacy in a public place by definition. We are talking
about street photography remember. Do you think Frank, Klein, Winogrand,
Arbus et al got releases? I can tell you now they didn't. I don't know a
single street photographer (and there are 500 on my list) who gets releases.
Harvey Stein (CONEY ISLAND, TWINS) said publicly in a seminar last week that
I attended that he has never got a release for a street photo. Commercial
use is not generally understood to include books and print sales.
Does US law really provide for someone to sue for invasion of privacy? I've
never heard of that. I would like to know more if it is true.
Under French and Quebecois law things are different, which is why I don't
photograph in France and Quebec.
> If the subject is recognizable and your
> artwork defames their reputation and /or character or implies something
> untrue or that they find objectionable, you could be open for slander and
> defamation legal actions as well in the U.S. and maybe in Canada.
Indeed, and a release won't help you with that.