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This question comes from Jenny in New Zealand – an important one I’ve meant to address for a while! When can you photograph people in public?
Jenny asked about a photo she captured years ago in France. It’s of a child crouched on the street, picking something out of the cracks between paver stones. You see most of the top of the child’s head and one side of the child’s face, though not clearly. You can view this particular photo here.
Was it legal to capture this photo, especially since it’s a child? If so, can this photo be sold as a print? Is compensation required? I’ll provide my opinion at the end of this article, but I want to discuss the meat of the issue first.
I need to provide the obligatory disclaimer that I am not a lawyer or a law expert, and this is not legal advice. This commentary is also based mainly on U.S. law.
Can you photograph people in public?
The issue of photographing people in public is primarily of interest to street photographers and travel photographers.
You want to capture the bustle of a busy street market and share it on social media. Can you do this? Do you need the permission of everyone in the photo?
Or you see an interesting person sitting on a park bench, their clothes clashing with the surroundings and creating an interesting juxtaposition. Do you “sneak” a photo? Get permission first and then capture the photo? Or do you become so paralyzed by the analysis of what’s legal that you move on?
It may make more sense to break the issue into two “categories,” or “steps.” Is it legal? If so, is it ethical?
Is photographing people in public legal?
When capturing the photo
You first need to know if photographing people in public is legal.
In most countries – certainly not all, but most – it is legal to photograph people in a public space. Why?
Courts generally recognize that you are giving up your right to privacy if you are out in a public space. You are giving implied consent to be photographed just by being there. If someone is in a public area with an expectation of privacy, like a public restroom, that expectation of privacy takes precedence.
What about children? This implied consent concept usually applies to children also. Does that mean I’d go around sneaking photos of children just because it’s legal? That’s an excellent way to draw unwanted attention to yourself by law enforcement, protective parents, and concerned strangers.
Most countries recognize the right to personal expression, i.e. photography, and you’re free to do so in public as long as you don’t harass people or interfere with emergency services.
There are exceptions to all of this, though.
You should always try to research the laws of the particular country or province/state where you’re traveling to ensure you’re within the law.
Some countries require consent beforehand if an individual is the main focus of the photograph due to different privacy rights but do not require consent if they’re “incidental” to the larger scene. And in some countries, you’re required to stop photographing someone if they ask you to stop, but in the U.S., you’re not. Wikimedia Commons has a table of some consent laws here.
Publishing your photos – commercial use
As mentioned in the last section, most countries recognize that photography in public is protected as a form of personal expression, or art. Individuals are protected by defamation laws, though, so be sure you’re not using these photos in a defamatory manner.
If you’ve legally captured these photos, what you’re legally allowed to do with them becomes far more complex.
What happens when money is involved?
If a photograph is used for commercial purposes, any identifiable person in that photograph must give written consent for that purpose. A model release.
- Commercial purpose usually means an advertisement. It does not mean anything you can profit off of.
- Identifiable usually means that the individual could recognize themselves, or other visible information can identify that person. Tattoos, unique features, nametags, license plates, etc.
Courts have long upheld that if an image of someone appears to endorse a product – like an ad – you must have that person’s permission.
Courts have also upheld that merely selling books or prints of people does not constitute commercial use and thus does not require that person’s permission. See Nussenzweig v. diCorcia, which went to the New York Supreme Court. It’s that difference between art and product endorsement. Note that this is U.S. law and could differ for other countries.
You’re legally allowed to sell your photos to stock agencies without a model release, but most of these agencies won’t accept those photos. They can be held liable for how the photo is published, and if you don’t have a model release, the photos are worthless to them.
Publishing your photos – fair use
Do you want to post these photos to your online street photography portfolio or social media feed? That’s art. Expression. Go for it.
Just be sure that the images cannot be interpreted to endorse a product. If you post a portrait of someone just to share the portrait, that’s one thing. But if the portrait is accompanied by text that says, “15% off portrait sessions next week,” you likely need that person’s permission since it could be inferred that they endorse your photography services.
Selling street photography prints is legal in most countries, as mentioned above. You own the copyright. They’re your photos. You do not need to compensate anyone appearing in those photos, nor do you need their permission first (dependent on the country, of course, as if I need to repeat myself).
It’s the same for any editorial use – education, social commentary, news, etc. I don’t need permission from anyone in the photos in this article because the photos are being used to educate and provide commentary on the subject – even if this article were behind a paywall.
However, remember there’s always the chance that someone might try to take you to court for using their likeness without permission. Will some random person walking the street likely see themselves in an image you’re selling? Probably not. But it happened to Philip diCorcia. He won, but going to court costs time and money.
For this reason, many editorial-style magazines will not publish photos of identifiable people without a model release, even if not required by the law. In recent years I’ve noticed that many editorial magazines require submissions accompanied by model releases. These publications want to make sure that, if sued, there’s paperwork covering the use.
I always try to obtain a written release when someone is the main focus of the photograph, just in case. It’s not required, but why not. It’s more difficult when people are incidental to the larger photograph, and the odds of that ever coming back to me are nil, so I don’t worry about it.
Is photographing people in public ethical?
What’s legal may not always be ethical. I think that, as photographers, we have a responsibility to be respectful of the people appearing in our photos.
Look at the standard example of photographing a homeless person on the street. It may be legal. But is it ethical?
Are they doing something compromising or embarrassing, like bathing in rainwater, and you snuck a photo of them? This probably crosses some ethical boundaries.
Or did you take the time to talk to this person, learn their story, and receive permission to capture their photo? This is both legal and ethical.
But then what are you going to do with the photo? Put it on social media and make a meme mocking that person? We’re back to unethical. Or will you respectfully share their story, who they are, that they’re so much more than just a homeless person? This is both legal and ethical.
The ethics question is, I think, quite simple: apply the Golden Rule. Put yourself in the position of the person you’re photographing.
Would you want someone to photograph you doing something embarrassing and share it on their social media feed? Probably not. So don’t do it when the roles are reversed.
And wouldn’t you want someone to stop photographing you if you asked them to stop? They might not be legally obliged to stop, but wouldn’t you want them to honor your request? So don’t photograph people if they wave you off.
I interviewed street photographer Valérie Jardin on this topic; you can read her thoughts here.
Let’s return to Jenny’s photo of the child on the street, photographed in France.
Is it legal? Yes, I believe so. It was on a public street. The photo does not provide any means of identifying the child, nor could it be considered defamatory in any way. It is artistic expression. Jenny owns the copyright to the photo and may sell the photo as art prints without permission from the parents or providing any cut of profits.
France has “right to privacy” laws, even in public. Still, where that law conflicts with a photographer’s freedom of expression, courts nearly always favor the free exchange of ideas (art) over privacy in public.
Is it ethical? In my opinion, yes. The parents weren’t around to ask permission, but there isn’t any context for a viewer to identify where the photograph was taken or who the child is. The photograph does not compromise the safety of the child in any way. I think it’s an innocent photo of a curious child that could be of anyone, anywhere in the world. I would probably disagree with this use if any more of the child’s face were visible. However, a stock agency would reject this photo.
Valérie Jardin answers a similar, but more broad, question about France in this article on her blog, probably more eloquently than I did 🙂
What do you think?
I hope this article helps you understand when you can photograph people in public. It’s a huge source of confusion for photographers!
- Know the laws of the country you’re photographing in, regarding consent before capturing the photo and publishing it in any way. Those can be two vastly different things based on the country.
- Apply the Golden Rule if presented with any ethical dilemmas.
Building up the nerve to photograph strangers is difficult enough for some people. Navigating the legal and ethical complexities on top of that can deter photographers from photographing anyone in public.
If you have any personal stories, experiences, or comments on this topic, please leave them below!
Tuesday 30th of May 2023
Yeah, selling a photo of a child that is not your own is kinda weak in the moral aspects. As for this photo there is nothing original about it or artistically significant about the photo. It's just exploiting the child.
Wednesday 31st of May 2023
@John Peltier, In my view a photograph is either ethical or not and the artistic quality of the image should have no baring on this at all, ever. Once we start making such 'convenient' distinctions then we are on a very slippery and dangerous slope.
Tuesday 30th of May 2023
The artistic qualities of the photo are a separate, unrelated discussion. Photography is personal expression, which is different for everyone.
There are also plenty of renowned street photographers who have sold prints of amazing photographs containing children who are not theirs.
Or does the artistic quality of the photograph change how ethical it is to sell it? Not a rhetorical question, I'm curious what people think about that.