To start with, I agree that I did back off my initial statement. I did it
for a couple of reasons; none of which were because I thought any of it was
wrong, misstated, or untrue. I backed off because John's response made me
realize that the statement came off sound much too absolute and
universalistic which was not what I really was trying to suggest. Like all
laws in the real world, their application and execution are contextual in
terms of specific concrete cases and based on interpretation.
There is also a historic and pragmatic side to the interpretation,
enforcement, and application of laws. There are some times in history, when
even if laws did exist, they were used infrequently as compared to other
period in history like the contemporary period because the population was
less educated and informed of the laws and of their rights than is the case
today; the general public was less aware of the value of their image and
identity in financial terms in part because one's image and identity did not
have the currency that it does today where everyone is selling and trying to
make money off their images and life stories. Moreover, U.S. society was
less litigious in days of old than it is today.
On the pragmatic side, many people do not take legal action today and in the
past because they are unaware that their picture has been taken much less
that it has be displayed publicly, published, or sold for profit as artwork
or for that matter any commercial use. Moreover, even if they are aware of
it, many who might be upset and given to take legal action do not have the
practical resources of time and money to hire a lawyer and pursue the matter
in the courts so they let it drop - either reluctantly accepting it as a
"you can't fight city hall" type of situation" or a "it's just not worth
Thus, much of the legitimate potential for legal actions in the past and in
the present are muted and do not take place even though they technically
could have; or they are settled out of court and you never hear about them.
Often, a release may implicitly be obtained by the photographer promising
and giving the subject a copy of the photograph that was taken of the
subject in implicit return for the photographers right to use the image for
unspecified legal uses and in ways that do not hold the subject up to
defamation of character, slander, or ridicule. In such cases, the subject
rarely presses a legal claim against photographer unless the subject was in
some way mentally defective or an underage youth who could be said to not
know what they were doing - but they potentially could press such a legal
claim and under certain circumstance maybe even win.
Thus, the potential is there for being sued even though it is not always
actualized, which is what I was trying to convey. Initially, I made a flat
absolute universalistic statement in response to a similar statement to the
effect that "For art you don't need a release as far as I am aware." I
admit to being guilty of this although I had not intended to convey or
dictate such a blunt absolutist meaning.
Having made this longish preface, I will now take up the point of your post
as to my credentials. I am sure my response will not satisfy you or anyone
else for that matter; but rather than publishing a resume. I will leave it
at I read a lot and have been following these issues for several years in
the press and trade publications.
I have spoke with lawyers about many of these issues on both an academic
level as well as on a personal level with regard to some personal
experiences that I have encountered related to the taking of photographs in
public places and found that I often knew more about how the relevant laws
apply to the arts than did the average lawyer who knew about privacy laws
and the like but did not clearly know or understand how it is applied to the
arts and artistic endeavors. There are legal specialists who have written
on the subject and I have made an attempt to read their work when I can.
Many of my illustrations are drawn from their works as well as from press
and trade publications news items and stories; some are drawn from personal
I have no formal law school credentials or training although I do have a
Masters of Art and ABD in Political Science and Sociology; and I have worked
as a lobbyist for a state courts system as well a Research and Evaluation
Specialist in a urban Mayor's Office and a Civilian Investigator in a City
Solicitor's Office. I have also taught at the university level in a
Criminal Justice program.
[mailto:firstname.lastname@example.org]On Behalf Of Maris V. Lidaka,
Sent: Sunday, May 20, 2001 3:25 AM
Subject: Re: filmscanners: OT: photographing on the street
Now you're (properly IMHO) backing off from your initial statement:
"You do in the U.S. if the person is recognizable and you do not want to get
sued for invasion of privacy."
Could you tell us what your background and/or training in this area or law
is so we know how reliable your assertions are?
----- Original Message -----
From: "Laurie Solomon" <email@example.com>
Sent: Sunday, May 20, 2001 1:11 AM
Subject: RE: filmscanners: OT: photographing on the street
| >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
| and not what the photographer or the
| "man-on-the-street" defines as a public place. The courts, at least in
| US, base their definition on a number of factors including if the person
| 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
| 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
| 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
| 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
| 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
| being taken to court does not mean that they can't be taken to court for
| having a release and invading the subject's privacy if the subject sees
| 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
| saying that such legal actions are common or always won by the subject;
| 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
| 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
| or, in some cases, the family or heirs of a subject who has died will
| 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
| 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
| >> 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
| show titled "Images of Drunks" which contains mostly images of real
| 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
| 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.
| -----Original Message-----
| From: firstname.lastname@example.org
| [mailto:email@example.com]On Behalf Of Johnny Deadman
| Sent: Saturday, May 19, 2001 10:30 PM
| To: Filmscanners
| Subject: Re: filmscanners: OT: photographing on the street
| on 5/19/01 10:57 PM, Laurie Solomon at firstname.lastname@example.org 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
| 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
| Harvey Stein (CONEY ISLAND, TWINS) said publicly in a seminar last week
| 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?
| 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
| > defamation legal actions as well in the U.S. and maybe in Canada.
| Indeed, and a release won't help you with that.
| John Brownlow