Question

[Digital]

I have a photo I shot in the summer of 2014 of a mother, and son. Before posting a photo on CiC, I usually ask the subject of the photo if they mind if I post the photo. Since I own the copyright, and am not trying to sell this photo, do I really need to get permission from the subject(s)?
In this particular case of the mother, and son (child), I am having difficulty getting hold of them since they live in another state.


Bruce

[Mike Buckley]

I'm not a lawyer, but my understanding is that if it was legal for you to take the photo without obtaining permission, it's legal for you to display it so long as you aren't using it for commercial gain.

[Digital]

Mike, thanks for your response. I am not planning to use this photo for any type of commercial gain.



Bruce

[billtils]

Bruce, The answer may well depend on the jurisdiction in which the image was captured and used. My understanding of the situation in the UK is that you can photograph members of the public in public locations and do what you like with the image (including sell it) provided that you do not misrepresent the circumstances. Photographs of "celebrities" are a bit different.

However, this is not legal advice and I'd certainly recommend that you be certain about what applies in the US.

[IzzieK]

Think of street photographers. Do they really ask permission from the people whom they photographed if they can display it here at CiC or any other forum? Go figure...

[Dave Humphries]

Hi Bruce,

Quite apart from the legal angle: The moral principle I would apply is; would I object* if the scene (taken by someone else) depicted featured myself (or my wife) plus my child?

* e.g. I might object if the pose were embarrassing, humiliating, private, etc.

Arguably there is also the context of release; e.g. discussion of the pose here is unlikely to be a problem, but once the picture is published, all control is lost over its future re-publication by anyone else with far less morals than we may have.

I agree that asking first is the right thing to do.

[Mike Buckley]

Regarding the moral issues, when possible, I always ask if it's okay to take the photo or I always give the subjects plenty of time to wave me off. Once that has happened, I feel no reason to then ask if it's okay to display it. That's because in my mind there should never be any assumption that a photo that has been taken is to be kept a secret.

If I have made reasonable effort to ask if it's okay to take the photo but with no success, that photo falls in the same category as those that are taken with permission. There are lots of situations when it's not possible to ask. In my mind, people who don't want their picture taken should avoid being in the public as much as possible, especially in this day and age when so many have cell phones and upload their photos to the social media.

[Cantab]

Bruce, The answer may well depend on the jurisdiction in which the image was captured and used. My understanding of the situation in the UK is that you can photograph members of the public in public locations and do what you like with the image (including sell it) provided that you do not misrepresent the circumstances. Photographs of "celebrities" are a bit different.

However, this is not legal advice and I'd certainly recommend that you be certain about what applies in the US.

Bruce, Bill's advice is good. I'm now retired from practising but one should never assume that whatever the law may be in one state/country is the same as what it is elsewhere. The issue raises questions of copyright law, privacy law and, in some countries, constitutional law (and probably other issues I no longer remember).

P.S. This is not legal advice!

[William W]

Interesting thread.

I am not a lawyer either.

I have been a regular visitor to the USA (with cameras) and my understanding of their laws concurs with Mike’s response in Post #2: that is to say - if it were legal to make the image in the first instance then it is legal to publish it ‘not for commercial gain’.

Apropos the matter of morality: my view is that ‘morality’ resides with and at the time of the making of the image and is not for later deliberations such as: "now I have made the image is it moral for me publish it".

In summary, I take the view that if I have made the choice that it is both morally proper and also legally sound to make the image in the first instance, ergo it is then suitable to publish it (loosely 'not for commercial gain') without any further ado.

There are two caveats I consider to the position described above:

> the set of unique circumstances (and seemingly ambiguous to the general concept to Copyright Law), where in the (rare) situation that the Copyright does NOT reside with me (as the Photographer) – in these situations, I would not publish that image without written consent from the Copyright holder to allow me so to do.

> any rare and unusual circumstances that would need to be considered after the event of making an image. For an example, concerning an image of a Mother and her Child - it could be insensitive to publish that image later, if in the interregnum, there occurred the death of that Child.

*

Additionally I do NOT always ask prior permission to photograph people.

There are many reasons and situations when attaining (verbal) permission prior to make a Portrait Image is simply restrictive and/or unnecessary, so there are many occasions when I do not: but I have never had any problems. It is simply a matter of being genuine and polite, being responsive and aware of the situation; and to body language; and being aware of cultural and religious sensitivities and also the local customs.

For example, in the image here:


Young Girl and Her Dog - Venice, Italy 2012

The 'Moment' and the connection the Little Girl had made with the Camera’s Lens, would have been lost forever if I had left the situation to seek permission of either this Girl’s Mum or Dad before I released the shutter. Mum and Dad were further down the street talking to a neighbour.

What I did do was later tell Mum and Dad that I had a great picture of the Child and asked for their e-mail address so I could send them a copy of it and I also offered to take a Family Portrait Shot, which I did do and there were lots of smiles and giggles and ‘thank you’ all around.

However, if I could not have found either the Mum or Dad quickly after making the shot on that day then I still would have no issues in either making the image in the first instance, or publishing it for education purposes.


WW

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