Model release when subject can never be found?

[Suzan J]

Hello All: I am definitely not in the business of selling any photographs, but I have always wondered what happens when people take photos of random strangers, either on the street, or while on vacation, or elsewhere. I have a few images of people that I might share on line from time to time, but I have never sold anything. A few years back I attended an evening course for beginning photographers and I recall the instructor spending a fair amount of time warning the students about obtaining model releases. That might be feasible for people you know, but what about the strange that just pass by?

[Mike Buckley]

Each country has its own laws about that. Depending on the situation, especially whether or not the image will be used for commercial purposes and whether or not it was legal to photograph the people without their knowledge, a release may not be required. If the release is required, the photographer will surely obtain the release before or soon after capturing the image, as hunting the typical subjects down afterwards would be nearly impossible.

[miatab]

I was told at a workshop last year that it is perfectly legal to photograph people in Canada without their permission on public property.

[Shadowman]

"Legal" question
Link has some info.

[Tronhard]

The following may be helpful when considering Canadian law:
http://ambientlight.ca/laws/overview/

From the experience I have had photographing you are pretty safe if you:
1. Don't break the law to take the image (trespass, provide false credentials etc.)
2. Are in a public area where a person could not have a reasonable expectation of privacy.
3. Are not taking images for profit or to publish
4. Take photos in areas that specifically permit photography, especially venues on private property

That said, common sense suggests that I would avoid taking photos of children, in particular if they can be recognized from them. I have issues with photos going on social media (which I don't post to anyway), as in many cases those systems use facial recognition, allowing those in focus to be identified if they have been tagged.

I know people who just go up on the street and take a photo close-up without a by-your-leave. I could not do that. Even on a street I will often choose to engage with people to ask permission - it starts a social interaction that can lead to possibilities for work (if they like the photos you take that is), it's also started some great friendships!

[Shadowman]

With social media being so far reaching you could always send out feelers to try and contact the person, of course if you use the photograph as source then it lessens the impact of the original capture. In my area, people use weekly news rags to send out meetup messages to someone they happened to spot at local shops; the purpose is usually to spark a love interest. I don't know how successful the attempts are but for readers of the news rags it does make one aware of how much others might find us interesting.

[Tringa]

Trev's points 1 and 2 are particularly relevant in the UK. If you are in a public place you can take a photo of pretty much anything you want, including private property you can see from the public place. Anyone in a public place cannot have a expectation of privacy and such photos can be published for profit without getting a release form signed.


However, nothing is ever that simple and there are a number of caveats.

For example, there are some government establishments where photography is prohibited - a photographer standing on a public road taking a shot of a nuclear submarime base might well attract attention.

What is a public place is not as simple as it first appears.
Almost every bit of the UK is owned by someone or some organisation and therefore it could be said virtually nowhere is a public place. However, a 'public place' is generally a place to which the public normally have access, but even that isn't the whole story.
For example, it would be possible to take a photo of a stranger in many streets in London and then sell it without a problem. However, step into Hyde Park for example, take a similar photo and sell it and things are different because photography (and filming and even audio recording) for commercial purposes in the Royal Parks is not allowed without prior permission(and generally with the payment of a fee)

There is also the issue that what appear to be public places, eg a number of roads around recent major office block developments, are in fact owned by the owners of the buildings and therefore private property.

If photography is allowed it doesn't mean you can do anything you want. Following someone along the street and repeatedly photographing could be harrassment and would put the photographer in breach of a law, similarly blocking a pavement with a tripod, for example, could also attract the attention of the authorities.

Even though photography in public places appears in the news from time to time there are still those who believe it is illegal to take a photo of a person in a public place.

Dave

[Shadowman]

Hello All: I am definitely not in the business of selling any photographs, but I have always wondered what happens when people take photos of random strangers, either on the street, or while on vacation, or elsewhere. I have a few images of people that I might share on line from time to time, but I have never sold anything. A few years back I attended an evening course for beginning photographers and I recall the instructor spending a fair amount of time warning the students about obtaining model releases. That might be feasible for people you know, but what about the strange that just pass by?

Susan,

You mentioned that you posted images shot on the street on websites and wondered whether or not a model release was needed; for that particular practice (posting online) you don't need a model release unless you used the image for commercial purposes. I should state that there are different levels of commercial purposes; if the image implies that the person photographed endorses a particular cause or item then it is considered a commercial purpose. If the image is displayed as an item of art it is not considered a commercial purpose. However, if the individual you photographed objected to having their image displayed and contacted you or the website to have the image removed; would you or the website be required to remove it?

[davidedric]

To add to the UK situation.

Though taking photos of children is not in itself illegal, taking a photo of a child who is the subject of a court order is illegal. (Suppose, for example, a parent who was excluded from contact with a child saw such a picture and was able to track down the subject). Of course, with individuals it is possible to check with whoever is with them, but in the case of groups that is much more difficult, made even more so because disclosing that a child is subject to an order (to a sports coach, for instance) is in itself an offence.

What a tangled web we weave!

Dave

[Suzan J]

Well, thanks for all the tips. It is certainly food for thought. Our local camera club had asked for photo submissions for a fund raising calendar for next year and I posted one particular photo of a couple of kids playing on the local beach. I guess times have changed and some folks may view that as not quite appropriate.

[Tronhard]

I guess times have changed and some folks may view that as not quite appropriate.

I think you are correct.

Times have changed, and much of it has to do with the proliferation of material getting onto the web, and in particular social media. Parents are, not unreasonably, protective of their children's privacy and these days you cannot guarantee that your innocently taken photo will not be published onto the web somewhere and used in a way completely unintended by you.

Lots of comment has been made here of your legal rights and obligations, but there is also a moral imperative here - i.e. how would you feel if it was your child and you weren't asked? The safest answer would be, where you are going to use the image for more than your personal use, to get a release for your publication, and as a guideline I would suggest that you should get one for any subject who can be recognized and likely to be under the age of consent if you want to avoid potential conflict - even if you are technically within your rights.

[Tringa]

Good point about the moral aspect. It reminds me of a line from Jurassic Park,

".... Your scientists were so preoccupied with whether they could, they didn't stop to think if they should".

I don't take photos of people, other than family and friends, but if it did occur I would certainly ask permission, even though in a public place I would not need to. I'd even ask if I could take a photo of someone's dog. It is just common courtesy.

However, Suzan's question was, I think, more about strangers who appear incidentally in photos taken in public places. Here getting permission is not practicable and we are back to "no expectation of privacy".

Anyone wanting privacy in a public place should put a bag over their head , and then see how many times they get photographed.

Dave

[John 2]

Trev's points 1 and 2 are particularly relevant in the UK. If you are in a public place you can take a photo of pretty much anything you want, including private property you can see from the public place. Anyone in a public place cannot have a expectation of privacy and such photos can be published for profit without getting a release form signed.


However, nothing is ever that simple and there are a number of caveats.

For example, there are some government establishments where photography is prohibited - a photographer standing on a public road taking a shot of a nuclear submarime base might well attract attention.

What is a public place is not as simple as it first appears.
Almost every bit of the UK is owned by someone or some organisation and therefore it could be said virtually nowhere is a public place. However, a 'public place' is generally a place to which the public normally have access, but even that isn't the whole story.
For example, it would be possible to take a photo of a stranger in many streets in London and then sell it without a problem. However, step into Hyde Park for example, take a similar photo and sell it and things are different because photography (and filming and even audio recording) for commercial purposes in the Royal Parks is not allowed without prior permission(and generally with the payment of a fee)

There is also the issue that what appear to be public places, eg a number of roads around recent major office block developments, are in fact owned by the owners of the buildings and therefore private property.

If photography is allowed it doesn't mean you can do anything you want. Following someone along the street and repeatedly photographing could be harrassment and would put the photographer in breach of a law, similarly blocking a pavement with a tripod, for example, could also attract the attention of the authorities.

Even though photography in public places appears in the news from time to time there are still those who believe it is illegal to take a photo of a person in a public place.

Dave

Got to take issue with you on a number of points Dave.

A public place in England (as opposed to the UK because Scottish Law may be different) is a place in Public ownership not a place accessible by the Public. Consequently, Rail stations (now privatised), Shopping Malls, cinema complexes, fun parks, football grounds etc. are not public places and you need the owner's permission to take photographs.

Even in a public place, if it's a general scene with people in it, that's ok. However, if the image obviously features a particular person (or building - See National Trust), you can take the photograph (and you own it and the copyright) but you still need a release to safely publish it commercially. You are however exempt if you hold a press card (and publishing it is in the public interest).

There are no Privacy Laws as such in England and so not observing the above is not illegal per se but you might find yourself facing litigation in court under Common Law.

You may find yourself breaking the law i.e carrying out an illegal act and being prosecuted under Criminal Law under The Prevention of Terrorism Act if you are seen to be making photographs of any persons or installation, which in "the reasonable opinion of the law" are designed to initiate or support and act of terrorism. The source of much controversy over recent years due to misuse by some police forces and others.

The same is true if you photograph installations covered by the Official Secrets Act. This isn't by the way, limited to Government establishments and assets. It includes nuclear power stations, most defence companies and any installation/ building in private ownership but leased to the government. It's always worth going to the main gate of these places because they are required under Law to display the Act in plain sight if it applies.

Note the difference between the taking of a photograph and subsequently publishing it.

Then, as you quite rightly point out, there are the local by-laws governing some Public places, to take into account.

There is a huge amount of discretion applied in most cases. I have never had permission refused when I wanted to take photographs at my local railway station or shopping mall provided I agreed not to upset the customers. Ditto the two Acts. For example, no one stops you taking photographs at air shows (but don't go poking your lens into the cockpit of someone's latest fighter A/C).

[John 2]

...........Lots of comment has been made here of your legal rights and obligations, but there is also a moral imperative here - i.e. how would you feel if it was your child and you weren't asked? The safest answer would be, where you are going to use the image for more than your personal use, to get a release for your publication, and as a guideline I would suggest that you should get one for any subject who can be recognized and likely to be under the age of consent if you want to avoid potential conflict - even if you are technically within your rights.

I couldn't agree more for two reasons. The first is purely good manners. The second applies if the intended subject has a ring through his nose or ears and is wearing black leather gloves. In that case some discretion might be appropriate.

[Mike Buckley]

there is also a moral imperative here - i.e. how would you feel if it was your child and you weren't asked?

I'm not a parent but I do have a niece and nephews that are 10 years old and younger. Not only would I not mind if someone took their photo without asking, I would expect it to happen in this day and age; if we're going to take children outside, they're going to be photographed.

The problem with moral imperatives is that it's imperative to recognize that different people have different morals. That makes it impossible to always act in a way that never offends anyone's morals. The only practical solution is to be reasonably sensitive within the law and one's own values and to move on with life.

[Tronhard]

Hi Mike:

Yep, it's a complex issue. That's why I rarely take photos of people and less so of children.

PERSONALLY, I think there is also a difference between taking a scene where the children are incidental, and taking a shot where the children are obviously the subject. People are out using cell phones and cameras all the time and it is pretty much impossible to avoid having one's image taken as part of the landscape. However, I would expect to be asked if someone wanted a picture of me or my stepdaughter in particular (although I suspect a picture of me might crack their lens ).

My experience has been that on the couple of occasions I have taken photos of children I have quickly been approached by parents who asked why I had taken the image and what I intended to do with it. On one occasion I showed them the image and they were ok with it and verbally allowed me to retain it. On another they objected, and without debate I offered to delete the images and did so in their presence - it was all very amicable. The point is that I was happy to engage in a dialog and didn't stand on my 'right' to take an image of someone in a public place.

[Mike Buckley]

The point is that I was happy to engage in a dialog and didn't stand on my 'right' to take an image of someone in a public place.

That, for me, is the main point. Once we have learned that we have accidentally stepped on someone's toes, it's always nice to make amends.

[William W]

As a general comment, which is actually quite specific, accurate and appropriate in most jurisdictions around the world:

A “Model Release” is a document which is concerned about the USAGE of the Image and it has little, if anything at all, to do with the legality or morality of making the Image.

Stated another way -

People may (or may not) have rights (legally and morally) apropos whether their image can be taken photographically – but a Model Release has nothing to do with those laws, rights or rules.


WW

[Tronhard]

I agree with Bill... The discussion drifted a bit from the question that seems to have arisen because the photographer wants to put the image of children into a calendar that will be sold. As Suzan J. wrote: "Our local camera club had asked for photo submissions for a fund raising calendar for next year and I posted one particular photo of a couple of kids playing on the local beach." I believe that, despite the noblest of fund-raising intentions it could be considered a commercial use as the calendars will be sold, in which case I would think it is wise to get the model release than deal with the potential fall-out.

[Cantab]

I agree with Trev 100%. As a retired Canadian lawyer, my guess is that the proposed use of this photo of children is asking for trouble.

Susan, my suggestion is that you withdraw your submission for this fundraising calendar or check with a lawyer with some expertise in this area (unlike me) to see whether or not there are legal issues on which you need advice.