rights' – a point of view by David Morris
Do you really know your
legal right to taking and publishing photographs in public places? I
suspect like me you have a hazy knowledge of what you can and can’t
get away with.
Be warned, this 'guide' you are following through the treacherous
mountain path of photographer's rights isn't up to the job, he's quite
likely to lead you over a precipice into a ravine.
So this is not legal advice in any shape or form, it's my point of
view, but I'm rather hoping that by sharing it, other 'guides' from
the Fotoura community with more savvy than I have will come forward to
help us avoid death in the ravines.
Let’s set off on comparatively safe ground.
You have a right to take photographs in public places of anything or
anyone and publish them, and make money out of them. This was my
understanding when I was at Art College a long time ago. The one
proviso was your photographs couldn’t be used for advertising purposes
without a model release form. The idea seemed to be that an individual
couldn’t be seen to be endorsing a product he perhaps wouldn’t want
to, and obviously he couldn’t be used in a libelous or derogatory way,
without at least giving his written permission. Which I think everyone
would agree was fair enough.
But a lot has changed since I had that advice. I remember being given
a camera at college and told to go out into the back streets of Hull
and photograph the kids playing because they made good candids and
natural portraits. You wouldn’t do that these days – although
interestingly can anyone tell me if there is a law in force that says
you are not allowed to photograph kids playing in the street – I
suspect there isn’t.
So I can photograph anyone in a public place, but what constitutes a
public place. Obviously our streets and parks, but what about cafés
and bars – the places where I do my photography? I rather think my
photographic lecturer would say a public place is any place you could
expect to be seen by the public. So bars, cafés and restaurants yes,
but your bedroom or the loo – definitely not. The famous shot of
Nigella Lawson in the restaurant is I imagine something neither, she
nor her husband wanted to see made public, but if you’re in a public
place; watch out. In fact worryingly what you or I think as public may
not be everyone else’s.
Photographer Arne Svenson recently won a Court ruling in the United
States which established his right to photograph people in their
apartments without their knowledge or consent (he photographed them
from his apartment) and publish and sell the images in galleries. He
avoided showing the individual’s face, but that was him being a
I know that’s America and this is England, but the defence of ‘in the
name of Art’ is a powerful one across most cultures. So make sure you
aren’t lounging on the balcony or walking through the living room
naked in front of big plate glass windows if you don’t want your image
used by an art snapping photographer or the paparazzi.
I don’t think Arne plans to repeat the exercise, I suspect that after
the hoo-ha even he thought that perhaps he had gone too far, although
his case did highlight the practice of other photographers and how far
they were prepared to push the limits.
And what about what appears to be public spaces but are not, like our
shopping malls, they are privately owned and have security guards. A
professional photographer I know was intimidated enough by security
guards to delete the photographs he had taken in a shopping mall. I
was shocked and surprise, my friend is no pushover, he’s a big no
nonsense Dutchman, an experienced photographer with a mind of his own.
I like to think I wouldn’t delete an image for anyone, but that’s
being brave here on the page.
The public’s attitude to being photographed has also changed.
The paparazzi and the Internet have seen to that. The public is cute
to the fact that photographs are valuable to someone, they are open to
exploitation and manipulation for commercial ends, and the public is
now aware of their ‘rights’ – or at least they think they are.
I’ve been told to delete a photograph I’d taken of someone in the
street, when I said I wouldn’t I was threatened with the police. If
the cops turned up I’d like to think they would back me up, but
there’s been a lot of recent history where they seemed unsure of how
the law worked. Amateur Photographer Magazine even went so far as to
issue a natty little lens cleaning cloth with a very polite message on
it addressed to police and security guards explaining the rights of
photographers to take photographs in public places.
If you are lucky enough to get your photograph without any bother and
want it published on-line or sell it in a gallery you are still open
to the subject of the photograph demanding withdrawal of the image
because they think it’s an invasion of their privacy or they want a
percentage of the profits.
Amongst other pursuits I’m a fine art photographer, I sell my images
in galleries, I’ve been told that in the case of what is termed a
‘fine art’ image any such claims against me ‘would be unlikely to get
very far, but it could be a hassle to deal with’.
And therein lies I think the crux of the matter. The whole area seems
to me to be a nightmare of legality, some of which probably has yet to
be tested in the courts.
What you can and can’t get away with will largely depend on how you
handle yourself in any given situation, and which country you are in.
France is not friendly to Street Photographers, the law there is
different, you can face a criminal action in the courts. Taking the
photograph in the name of Art is a defence, but not one that people
are as confident in as they used to be.
I recently took a photograph late at night of a man and a couple of
women in a street in Italy. The man took exception to this, said I
wasn’t allowed to take a photograph of him without his permission and
demanded that I delete it.
Fortified by half a litre of wine and a good I meal I stood my ground,
became adamant that I had every right to take a photograph in a public
place and that he didn’t understand the law. Neither did I as it
happened, we were in Italy after all; perhaps they do things
It wasn’t my finest hour.
When we take photographs of people without their permission we take
something from them, it’s not an unnatural emotion for them to feel
robbed or violated in some way. Taking a photograph is a selfish act
perpetrated by the photographer, an invasion of somebodies privacy, no
matter what the law may say in defending our ‘right’ to take
photographs of people in public places.
It’s simply bad manners.
Stare at somebody and you’ll likely get the sharp rebuke ‘What are you
Embarrassed we quickly avert our eyes, we are in the wrong, it’s
socially unacceptable, our position indefensible, a shrug of shoulders
against us – unless of course you are a photographer.
That’s what the camera does, it stares at you and then when its
results are processed it invites the public along to continue staring
at you for as long as they want.
Being aware of how people feel is something we try to blot out, are we
going to stop taking photographs because we may upset people?
The answer you won’t be surprised to hear is ‘no’.
You can of course develop strategies to cope with uncomfortable
situations; use cable releases, hide your camera in a bag, avoid all
I read of some advice given by Don McCullin on street photography.
He said if you were taking a photograph of someone and you’d been
spotted and it looked like you were going to get into difficulties,
take your photograph anyway, and as you lower your camera concentrate
on the individual’s right shoulder then make your way purposefully
towards it – and straight on past it. Great advice – unless of course
the individual is leaning against a brick wall.
It all reeks a bit of subterfuge, and underhandedness, but it doesn’t
need to be that way. Martin Parr is big on going forward to engage
with his subject and he’s got some terrific results by being upfront
in his intentions, although I rather think he engages with his
subjects when he realizes he has to. We all know the old predicament,
let people know you are there and you’ve lost the spontaneity of the
I find it good practice to carry a business card with me, so that if I
get spotted I go forward immediately with a big smile and the card and
explain myself. It’s worked every time so far – well OK, apart from
that chap in Italy, but that was my fault. People generally appreciate
the explanation, and mostly are open to what you are trying to do –
even flattered that you considered them interesting enough to
We are all engaged in this act of street mugging, complicit in the
arrangement, the photographer, and the viewer of the photograph.
I remember seeing a student with a photograph of the Falling Man from
9/11; an elegant pose, his agony reduced to a screen saver on a
We consider we have the right to stare at whatever we want, and who
knows maybe we do, but we should at least be honest and acknowledge we
are engaged in an act of selfish will, vainly hoping perhaps, that
this particular photograph will make us famous, give us the
recognition we deserve.
It's an uncomfortable business and it deserves to remain so.
Since the law is unclear, and our motives may be suspect, the least we
can do is be human, be polite.
If it’s any help these are some words I find useful.
Edward Steichen was talking about that old chestnut - is photography
Art? His words in reply are bigger than any part of that tired debate.
He said: “Today I don’t give a hoot in hell about that. The mission of
photography is to explain man to man and each man to himself.”
6 January 2014
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