Do you really know your legal rights in taking and publishing photographs captured 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 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 photographers and experts will come forward and help us find a way through this legal minefield.
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 candid photographs 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 of as a public place may not be what everyone else thinks.
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 ‘gentleman’.
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 are 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 differently there.
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 staring at?’ 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 eye contact.
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 moment.
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 photograph.
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 student computer.
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.”
There will be an exhibition of some of the photographs from this article at HIP, from Nov 7 to end of December.
‘BARLIFE’ a study of bars, cafés and pool halls, wherever people and alcohol mix