Inherent permission to photograph someone

[Manfred M]

In the past, there have been an number of questions on getting permission from subjects to take their picture, when photographing out and about, i.e. street photography and some documentary photography.

The person that filled me in on this is an award winning photographer, a former reporter, a practising lawyer who is currently working as a diplomat and has some knowledge of international law.

There is a legal principle, called "inherent permission" and from a photographer's viewpoint it works like this. If you are out taking pictures in public places, where your subject can see what you are doing with your camera. If you point your camera at them and take their picture and they do not object, they have given you "inherent permission" to take their picture. If they in some way or other show a negative response; shaking their head to indicate "no", turn away from the camera, put their hand out or in some way indicate that they don't want their picture taken, they have not given you their permission to do so.

Some caveats apply; children who are not of legal age can't give inherent permission. If the photographer is sneaking around in "stealth mode" and takes images in such a way that the subject does not know that you have taken their picture, inherent permission can not have been given. It doesn't mean that you can't take the pictures, but it just means you do not have the subject's permission to do so.

This is something that applies to Canada and because Canadian laws are based the UK parliamentary (Westminster) system of Government and have a principle of Common Law, this is likely to apply to other countries with similar legal systems; the UK, USA, Australia, New Zealand, etc.

[revi]

But that is about taking their pictures. I *think* the rules concerning publishing are more restrictive,
in that there are a number of situations where you need written permission?

[DanK]

Also, legalities aside, some people get quite angry when they are photographed without permisson.

I wouldn't be surprised if the legal considerations vary not only from country to country, but even from state to state in federal nations like the U.S., Canada, Australia, and Germany. I know that the laws governing audio recordings do vary from state to state in the U.S.

[Manfred M]

But that is about taking their pictures. I *think* the rules concerning publishing are more restrictive,
in that there are a number of situations where you need written permission?

Publication rules for "commercial use", i.e. in advertising require a model release and in some cases a release of the location where the photography takes place, where the building owner has to give their permission.

Non-commercial use, for instance , publishing images in an article, do not have the same restrictions. If you visit an art gallery showing the works of a documentary or street photographer, those images do not require the subject's permission. There are no restrictions on the sale of these photographs either, as for the most part, they belong to the photographer.

If the photographer is hired to do a set of images for a client, the terms and conditions of the contract may specify that the copyright is assigned to the organization that has hired the photographer. The photographer I spoke to in #1 has done that type of work. While he signed over the copyright, he was given permission to use those photographs in his own advertising and personal use.

There may be a few jurisdictions where written permission is required; I have heard that Hungary has more restrictive laws.

[Manfred M]

Also, legalities aside, some people get quite angry when they are photographed without permisson.

That is true, but has nothing to do with the legality of photographing someone. As a general rule, I will not photograph someone who does not appear to want to, regardless of what may or may not be legal.

I wouldn't be surprised if the legal considerations vary not only from country to country, but even from state to state in federal nations like the U.S., Canada, Australia, and Germany. I know that the laws governing audio recordings do vary from state to state in the U.S.

I don't know about the USA, but the photographer I spoke with has worked in the USA, in a number of different states, and suggested that what he said applied there too.

That being said, that does not mean that there are no restrictions. Photographing military personnel, police, etc.may not be permitted even if the the general population can be photographed. As an example, India's legal system is based on the UK model and photographing military / law enforcement is not allowed. Photographing critical infrastructure, like bridges, railway stations, airports, power generation / distribution facilities,etc. may also not be allowed in many places.

In Canada, the Province of Quebec, has a Civil Law system based on French law, rather than Common Law used everywhere else in the country. The photographer / lawyer I spoke with is a Quebecer and has done a lot of his work there, as well as elsewhere in Canada, so it seems even with the different legal system, the principle of inherent permission still applies.

[DanK]

I'm not an attorney, but from what I've read, this is an area of unsettled law in the US. What is clear is that publishing for commercial use requires permission. One of the more detailed explanations I've found is here: https://corporate.findlaw.com/litiga...-required.html

An interesting wrinkle in that article is this:

Releases are generally not required from people who are identifiable in a photograph of a street or public place, provided that the photograph is reasonably related to the subject matter and the identifiable people are not the focus of the photograph. An example of a permitted use would be a photograph of the Rockefeller Center Ice Rink that was used to illustrate a book about Rockefeller Center or about New York City attractions, even though many people may be identifiable.

[Chataignier]

This is somewhat of a minefield !
I can only speak for France, here the inherent permission principle applies with certain exceptions, but it is difficult to prove - if the subject swears he refused, who can argue that it is not true ? However, if someone is dressed up (for a carnival for example) in a public place it can be argued that they intended to be seen and photographed. Public figures such as politicians, sportsmen etc are also considered to have chosen to be of interest and so have far less protection.

Another important principle is "the subject of the photograph". Is the person the subject, or are they simply in the frame by accident ? To have rights to the image they must show that they are the subject of the photo and that they are recognisable.

To have any case for damages it is not enough to show that the subject of the photo did not want to be photographed, they must show that they have been in some way defamed by the photo.

[William W]

In the past, there have been an number of questions on getting permission from subjects to take their picture, when photographing out and about, i.e. street photography and some documentary photography.
. . .
There is a legal principle, called "inherent permission" and from a photographer's viewpoint it works like this. If you are out taking pictures in public places, where your subject can see what you are doing with your camera. If you point your camera at them and take their picture and they do not object, they have given you "inherent permission" to take their picture. If they in some way or other show a negative response; shaking their head to indicate "no", turn away from the camera, put their hand out or in some way indicate that they don't want their picture taken, they have not given you their permission to do so.
Some caveats apply; children who are not of legal age can't give inherent permission. If the photographer is sneaking around in "stealth mode" and takes images in such a way that the subject does not know that you have taken their picture, inherent permission can not have been given. It doesn't mean that you can't take the pictures, but it just means you do not have the subject's permission to do so.
This is something that applies to Canada and because Canadian laws are based the UK parliamentary (Westminster) system of Government and have a principle of Common Law, this is likely to apply to other countries with similar legal systems; the UK, USA, Australia, New Zealand, etc.

In Australia, as a general, but reasonably firm guideline, permission is not required to be provided by Subjects for a Photographer to record the Subject's image in any Public Place; note this also applies to taking images of Children. Thus 'inherent permission" is moot (i.e. has little or no meaning) in these situations, though noted, Manfred wrote: "it doesn't mean that you can't take the pictures, but it just means you do not have the subject's permission to do so." , and thus there is a co-relationship in the base of our laws.

In Australia there are no general publicity rights; no personality rights; no right to privacy that protects a person’s image. However a person’s image, in some circumstances may constitute "personal information" under the Australian Privacy Act 1988 - one consequence being that are circumstances whereby publication a person’s image may breach that Act. Additionally, it would be unwise to publish any Subject's image which implied commercial endorsement of a product or service without that Subject's permission, preferably a Contract.

***

Regarding 'street photography': the most common type of challenge I have had is by (adult) people, not necessarily parents, but often parents, when I have been photographing is areas nearby children's playgrounds, the beach or similar; however I note very rarely have I been challenged at public venues where there has been a sporting event involving children, for example a surf carnival.

At public events, the most common challenges toward me are along the lines of: "are you the official photographer?", which I find odd, because, for example, at the last ocean swim a few weeks ago, there were at least 50 people photographing 'children' (2 to 12 years) and youths (12 to 18 years) using cameras in their phones.

Typically, for a 'public event' I carry two Canon 5D Series bodies, one with a Standard Zoom and the other with a 70 to 200. For 'street photography' I use any of a 5D Series with Standard Zoom; a Fuji X100s often with additional lens; Canon M5 and 35mm F/0.95 - the point of listing the cameras goes to size and bulk - they're all 'conspicuous'. It seems to me that videoing and still photography using camera phones is so commonplace that such practices are very rarely if ever now questioned.

Similarly, in situations where there is a right to question and stop video or still photography: when in private property, such as a restaurant, or a shopping centre, very rarely are camera phone videos or still images ever challenged, and rarely still are these Photographers stopped, even if complaints are made to the management or security.

I think the societal trend to 'allow'/'accept' camera phone activities is interesting. Moreover the ignorance of the rules for publication of images and videos is even more interesting for example, publications in social media accounts.

***

Addressing taking a photograph, even if permission is not required:

There are many people ignorant of the law, moreover some of these people are most vocal and can be volatile. Whenever I have been challenged, I establish as best I can the personality type; basically is the person inquisitive for the purposes of understanding the situation or inquisitive for the purposes of telling me what I am allowed to do, i.e. to control my behaviour, even if my behaviour is legal.

Additionally I weigh up how important is/are the image(s) I want to take, contrasted to the investment in time and effort to engage the challenge.

It's mostly always common sense to not take a (street) photo of a Subject who doesn't want their photo taken, basically because such a photo rarely has much photographic value or general interest, anyway:

Two of my examples/experiences:

This would be valueless if the girls were not so engaged with the camera and if they weren't engaged I would have not made the shot:
https://www.cambridgeincolour.com/fo...chmentid=35705

On the other hand, it is not necessary to tolerate obnoxious and ignorant behaviour when is being shouted at that it is illegal to take this street image and calling the police was necessary:
https://www.cambridgeincolour.com/fo...chmentid=35735

***

Regarding children, I have found most parents are simply inquisitive from a protective base. I can't recall not taking a shot of a child that I wanted to take, parents want the security that their child is safe: that all starts with how the Photographer approaches and prepares for the shot - a smile, a gesture, a word of what a great photo this might be, openly carrying the camera in plain sight, walking around with confidence all play a role.

Sometimes I have taken a shot of a child not knowing where are or who are the parents, and to be approached later by them: taking the front foot in the conversation I have found to always be a good idea . . . from my experience as an example (not in Australia) I approached with (paraphrased now), "I took a photo of that child with her dog, you might be the parent, are you? Here is the picture, I was walking up the street and it was a picture that just needed to be taken, I would like to give you a copy of the image, do you have an email, or you can download it now if you have a computer, I have the camera lead."
https://www.cambridgeincolour.com/fo...chmentid=35702

An obvious question to the above is, "what would you have done if the parent asked you to delete the image?" I would have deleted it, asking first, "are you sure you don't want it?" The reason I would have deleted it is because I was on holiday, not in Australia - there's no need for hassle in a foreign country and certainly no need to get any parent angry, in the presence of their child.

***

Also, legalities aside, some people get quite angry when they are photographed without permisson.

I think there are very limited times and very few reasons to push for a shot where one is legally entitled to make, if the push-back is very strong. The outcome must be worth the effort and stress required: very few shots exist, even within the professional's scope, where a 'fight' might ensue: it's easier and better, simply not to be there.

Street photography requires understanding of the law, and possibly moreover the awareness of all the possible reactions of the Subject(s) and how to deal with those reactions.

For example, again from experience: consider the date and location of this image below. My preparation for the shot was open and took about 45 seconds. I made it clear that I was carrying a camera and was preparing to take the shot and would keep my distance, indicated by me walking backwards at his constant pace –
https://www.cambridgeincolour.com/fo...chmentid=38139

WW

[Chataignier]

Interesting post Bill.
As things stand here in France, I tend to agree with your "is it worth the hassle" test. However, members of the public in France increasing try to stop photographers from taking pictures even though they are within the law. By not pushing back we tacitly accept this which is not good for the future of photography.

By the way, I also observe that phones are not viewed the same way as cameras.

[William W]

Interesting comment re France: that's one country where I have not had issue, even though as you mentioned earlier people in France can 'refuse to give you' permission. Maybe when I am in France I 'look like' a tourist and that makes a difference? That's not a joke, I am serious.

Trust you looked at the photo that I took in Leon, and noted the date. I have a collection of Street Photography shot in France, and recently too.

I have and do resist strongly in some situations: the photo of the three yachts was taken in the Eastern Suburbs of Sydney. There was no push back allowed by me in that situation. It was I who called the police. I have several issues in that same area, funnily enough mostly taking photos of cars, trucks, fire-hydrants, hotels and churches: not people. Go figure?

Perhaps we are more sensitive or notice more, in own own home town.

Three more street shots from France:
https://www.cambridgeincolour.com/fo...chmentid=38142
https://www.cambridgeincolour.com/fo...chmentid=38141
https://www.cambridgeincolour.com/fo...chmentid=38140

WW