DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.
“What are the legal issues when it comes to taking photographs of people?”
People have the “right to privacy” which is often considered as a right to be left alone when removed from the public view. From a photographer’s perspective, this means that, if you want to:
Take a Photo
- You can’t photograph people when they’re out of public view and in a private area, such as in a bedroom, changing room, bathroom, doctor’s office, etc. People are permitted a “reasonable expectation of privacy.”
- You can photograph people who are openly in public view, for example, on the street, on the beach, in a park.
Sell or Publish a Photo
- You’ll need a signed model release if the use is commercial, such as FOR an advert or the cover of a product. This includes celebrities, even though they’re “public” figures and even if you photographed them in a public place. (Editorial, factual, newsworthy purposes are OK).
- The display of the photo can’t be maliciously untrue, or humiliate, ridicule, or reveal embarrassing and personal facts about a non-newsworthy person.
Introduction to Privacy
If you’re going to photograph or publish photos of people, you should be mindful of the “right to privacy.” This refers to a body of common law designed to protect people and includes such delightful terms as “invasion of privacy", “right to publicity,” “defamation” and “libel.”
You can be sued by someone if they feel your photo damaged them financially or personally. We don’t want to get sued, so let’s understand the law.
History
Privacy law, in the U.S. and England, is “common law.” That means it isn’t written down as a statute by legislators (that’s “statutory law”) but follows previous rulings (“precedents”) made by judges.
Common law is also known as “tort” law, since it is created by the filing of a “tort,” not a tasty cake but a civil wrong, from the French avoir tort, “to be wrong.” Because of this, there is not a single law to abide by but many rulings, or precendents, to be aware of.
The closest statute in the U.S. is the Fourth Amendment, which gave people the right:
“to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizure.”
Originally, that applied only to the government, but it was extended through common law following a Harvard Law Review article in 1890 entitled “The Right To Privacy.”
Thus, there is no actual, singular, defined “right to privacy.” Rather, this is a legal term referring to a body of tort law which allows people to be left alone.
The Right to Privacy
There are four categories of privacy:
- Solitude
- Private Facts
- False Light (includes “defamation” and “libel”)
- Identity (includes “right of publicity”)
1. Solitude
Intrusion of solitude. Home, seclusion, private place, a place out of public view, reasonable expectation of privacy. similar to trespass if the intrusion would be highly offensive to a reasonable person.
Dressing rooms, restrooms, medical facilities, inside their homes.
“One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person.”
—Restatement (Second) of Torts, 652B, American Law Institute.
“If the subject of the photograph has no reasonable expectation of privacy, then no invasion of privacy is possible. Photographs taken in public places generally are not actionable. Photos of crimes, arrests and accidents are usually considered newsworthy and immune from privacy claims.”
—Photographers’ Guide to Privacy, by the Reporters Committee for Freedom of the Press.
2. Private Facts
Public Disclosure of Private and Embarrassing Factspublic disclosures of embarrassing private facts. reasonable expectation of privacy, e.g out of public view and in a private place. rewrite: would be highly offensive to a reasonable person, and is not a legitimate concern to the public.
3. False Light
Publicity which places a person in a false light. using a photo out of context can imply that a person in the photo was doing something they weren’t. usually not the photo itself but the caption, text or presentation of the photo. similar to libel. a misleading or offensive display of someone). This is defamation, an aspect of which is libel. Libel includes a non-truthful photo, or display of a photo, which ridicules, humiliates, or provokes contempt for, a living person or company. In the case of a public figure, libel is narrowed to malice and reckless disregard for the truth. First Amendment be provide a “constitutional override, permitting free speach for the public benefit.
4. Identity
Appropriation of identity. Advertising. appropriation of a person’s name or likeness Property Rights. If people paid admission, then it can be an invasion of privacy to publish photographs. Appropriation of identity (using a person’s image or name without consent for commercial gain). The last one has become the “Right of Publicity", as celebrities and sports teams use the law to control publicity.
Corporations and Invasion of Privacy
“Except for the appropriation of one’s name or likeness, an action for invasion of privacy can be maintained only by a living individual whose privacy is invaded.”
— Restatement of Torts, Second, §6521 (1981), American Law Institute
“A corporation, partnership or unincorporated association has no personal right of privacy. It has therefore no cause of action for any of the four forms of invasion (of privacy, including intrusion upon seclusion).”
— Restatement of Torts, Second, Comment (c), American Law Institute
I haven’t finished the following:
Street Photography
U.S.: Nussenzweig v. diCorcia is a decision by the New York Supreme Court in New York County, holding that a photographer could display, publish, and sell (at least in limited editions) street photography without the consent of the subjects of those photographs.
Privacy: Photographer’s Guide to Privacy, Reporters Committee for Freedom of the Press
