Photographing people comes with some additional complications not present when photographing still life. An obvious statement, you say. One such complication is the question of permission when photographing people informally.
Last week, I had dinner with acquaintances who insisted that photographers own all their images from the moment they are shot. Permission to use them is not required. I was also out shooting with others who believe that documents get in the way of artistic freedom, particularly in informal settings. I wanted to know more.
First, a disclaimer: this post is NOT legal advice. Every jurisdiction is different – it’s up to you to understand the laws that apply to you and how best to protect yourself. You should always follow any copyright and privacy laws, particularly if you hope to profit financially from your work.
And this post is not about formal portraits or events for hire (weddings, family milestones, freelance event photography, etc.), which typically include negotiations and signed contracts; it’s about the more spontaneous form of people photography known as “street” photography.
In my part of Canada, there is one overarching principle, rule, law (call it what you will): photographers DO own the IMAGES they shoot. But in the case of photographing people, subjects own their LIKENESSES (faces, identities, etc.). So, we have an immediate problem: two owners.
Practically speaking, this means that a street photographer working on their craft can indeed capture members of the public going about their day, even if their faces or identities are clearly visible in the photographs. They can store the resulting images in their personal collections, for their own personal use.
But the moment that a street photographer releases an image of an identifiable person or even shows it to someone else, the photographer has crossed a boundary. This can include sharing on social media, posting on a website, or something as innocent as entering a competition at the local camera club. Similarly, if the photographer sells the image, or benefits financially in any way from its use, they have also crossed a boundary.
In both of the above situations, subjects have the right to control how and when their faces/identities are shown, and to whom (or not shown at all). Depending on the situation, subjects can also demand compensation or damages from such use. In formal settings, these rights are managed through signed “releases”, where the subject receives some form of benefit in exchange for full or partial rights to use their face.
Street photography can also include community events, attended by crowds of people. Sometimes the event holder will provide notice to attendees. If the photographer is capturing the event for their own artistic interest and there is no formal arrangement with the event holder, then the principle of two owners applies here as well.
There are lots of grey areas that I won’t get into, including individuals who use their cellphones to document newsworthy events as they happen. The proliferation of social media posts, sometimes cute, sometimes embarassing and sometimes frightening, has already shown that lawyers and courts won’t hesitate to sort out exactly who has the right to do what.
I also won’t speak to the challenge of photographing children informally. All photographers should realize the sensitivity of capturing informal images of kids, and should be prepared to follow all legal and social norms for doing so.
With digital photography, the line between “in-camera” and “post-production” is far more blurry than in the days of film. In terms of permissions, it also seems that the more an image is changed from what the lens originally saw, the stronger a case potentially exists for a legal claim, if permission is not obtained from any identifiable persons in the image.
Finally, some jurisdictions distinguish between photography for artistic purposes (fine art) and photography for commercial purposes (advertising, promotion, publicity, etc.). Making money from fine art without the subject’s permission is actually permissible in some jurisdictions.
So, with all those disclaimers out of the way, what’s the practical advice? If a face is key to your image, start with the fact that your subject owns their face. Just as you would ask permission to use any of their other possessions, you should be prepared to get permission to capture your subject’s face. Again, if the goal is to make money from your images, you would be wise to make sure your formal paperwork is in order. If you are a hobbyist, there are other approaches that work as well.
Sometimes all that is needed is a few minutes with your subject, before or after you take the shot, to get to know them, to talk to them about the story that goes with the photograph, and possibly to offer something of value to them for the opportunity to photograph them. For some, an email copy of the images or a link to an online album might be all that is needed. For others, it might be a bit more substantial – something they value in trade. Still for others, it might not be ok and you should respect that.
But there are alternatives to including faces in your images. Some of the most iconic images show nothing more than the outline of a person.
Above: my shot of a couple on a lazy summer afternoon. Below, Henri Cartier-Bresson’s famous image of a man passing through a square on a bicycle. One of his “decisive moments”.
See if you can broaden the shot to include the surroundings. The interest then becomes what the subject is doing and the wider context of that action, and not their face.
Below: my shot of a window washer balanced precariously on a ladder while others stand and look on, all happening in a “no standing” zone. Two faces are visible, but they are not the main subjects of the image. This wider view defines the storyline.
Below: my shot of a crowd of people waiting to enter a local historical site, while a young person tries to make sense of the peculiar structure in front. Again, faces don’t define this image.
Some of the best spontaneous images of people show nothing that identifies them individually. The opportunities for artistic expression and story telling are not at all diminished because you can’t see a face.
Below: the search for solitude under a staircase.
If you decide that an individual face is key to the storyline and presentation of your image, consider how you will get permission, and treat your subject with the respect they deserve. Regardless of the legal complexities, it’s just the right thing to do. And knowing their story may inspire you to present the final image in unique and unexpected ways.