As the name suggests, “street photography” is usually done in a public place like a street, sidewalk, or park with candid images of people going about their daily lives. This type of photography is legal in the US under the legal premise established by the Supreme Court that there is no reasonable right to privacy in a public place. Because of this, we are photographed or recorded many times a day by surveillance equipment, police body cams, and anyone else with a camera. In France, on the other hand, the law is different and obtaining permission to take photographs in public is the general rule. But here in the US, the rules differentiate between public and private, with the highest expectation of privacy at home (although that too can vary from state to state).
While street photography itself may not be a crime or grounds for a civil suit, what a photographer does with those images can have legal ramifications in several other areas. One is when a photo is used commercially, such as for advertising or commercial purposes. It’s one thing for a visual journalist to take a photograph of someone in a public place and use it for editorial purposes to illustrate a story or matter of public interest. It’s an entirely different thing to use the same image on a box of cereal or to promote a different product or service.
First and foremost, no permission or model release is usually required, but model releases are essential for commercial use. Model releases are contractual agreements and photographers must be very careful to include any terms necessary to grant them the rights to use and license the image. A photographer should also get a signed release from every recognizable person in the photo, not just the main subject. It is also important to remember that when photographing a minor that requires model release, only the parent or legal guardian can grant such permission.
The question between street photography and model releases came more into focus a few years ago when DKNY offered to license such images for display in their retail store windows. The photographer and company couldn’t agree on a price, but neither did the photographer have model clearances, which is common in street photography. Unfortunately for DKNY, one of its Bangkok stores “accidentally” used the images. The photographer spotted this and then took to social media to draw attention to the incident. DKNY reached a quick and very public settlement. An important point is that if the photographer had licensed the images without the appropriate clearances, he too could have been held legally liable for the subjects of his images.
Using someone’s likeness for commercial purposes without consent (ie without model release) when they could reasonably be identified is known as embezzlement. Other legal claims that may come into play when using photos include defamation, false light and right of publicity. A startling example of false lighting occurred when a model’s photograph was used to illustrate an HIV awareness poster. Although the photographer and photo agency were believed to have had model clearance, the use of the model’s photo gave the false impression that she was HIV positive, which a reasonable person would find highly offensive. The lesson is that even if you have model clearance, it can be risky to license a photo to illustrate a sensitive or controversial subject.
Public rights, which protects a celebrity’s commercial interest in the exploitation of their likeness, is an evolving area of law and varies from state to state. It is important for those whose photography involves the taking and use of such images to be aware of applicable laws.
Although not often encountered in the context of street photography, the intended (commercial) use of the images may also require the owners’ permission – in the form of property releases – for such use. Property can be real estate, buildings and land, but also pets, cars, works of art, intellectual property (e.g. copyrighted works) or anything that is not a person. Whether you need a property release depends on the specific use of an image and how visible and identifiable an individual’s property is in that image. Discuss the risks of a particular use with your attorney, and when applying for a property release it is extremely important to ensure that the person granting the permit owns the rights it is granting.
Aside from legal considerations, photographers should also keep in mind that many people are very suspicious of anyone with a camera, especially when photographing children. And while the frank spontaneity of a street scene can’t be ruined by getting permission from a subject or their parents, addressing these considerations can go a long way toward avoiding awkward confrontations or questioning from authorities.
Because so many of the above laws vary from state to state and the use of images is nearly limitless, photographers should consult their own attorney regarding the need and exact language of their releases (model and ownership) and be familiar with some industry standards like that NPPA Code of Ethics.
Mickey H. Osterreicher is General Counsel of the National Press Photographers Association (NPPA). He has been a visual journalist for print and broadcast for more than 40 years.
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