Candid photos - legality?

jrong

Too many cameras
Local time
4:42 PM
Joined
Jun 20, 2005
Messages
247
Location
London, UK
I just need to pick everybody's minds on the subject of candid street photography. A lot of us use RF's specifically for that reason, it's small, it's sleek and quiet, and not very threatening nor visible.

I was in a restaurant ordering takeout food a few weeks ago. I am in the process of documenting old cafes and greasy spoons, and although the restaurant itself was not strictly in that category, it had an interesting "old cafe" feel to it, and I had my Bessa R with me, so I peered through the viewfinder to check my exposures. It was much too dark. The place was pretty crowded with diners, and I was standing up in the takeout queue. I'd say there were about 15-20 people in there. When a waitress decided to clean up a table, I got a quick grab shot of her back against the glass door and windows.

I went outside to wait for the takeaway, and while I was pacing outside the restaurant with my camera, some guy came out of the restaurant with a really foul look on his face. He told me he did not appreciate having pictures taken of him while he was having dinner, and asked me whether there was film in my camera. From his intimidating manner, I thought he was going to punch me or rip the film out of my camera... I was flummoxed, and frankly did not even recall seeing him in the restaurant, or having pointed my camera at him. So I told him I was mostly checking exposures in the restaurant and most likely had not taken a photo of him. He was irate and EXTREMELY RUDE and demanded to know why I had taken a photograph.... he then demanded my business card, threatening me if he "ever found his photograph anywhere in print". I was even more flabbergasted and said I had no idea who the hell he was. Did he think I was a paparazzi photographer? Clearly, he thought he was somebody. He was rude and bullying throughout, and his manner did not change throughout our interaction, even though I insisted I was only waiting for a takeout.

I developed my film and yes, he was actually seated at the corner of the photo that I took of the waitress cleaning the table. He was very clearly not the subject of my photo, nor is he instantly recognisable unless I enlarge the photo many times. I'm really quite peeved by this behaviour. If he had been polite, or asked me nicely what I was doing, and would I kindly not publish the photo, I would have happily respected his wishes. His extreme rudeness and bullying behaviour makes me think that he has either something to hide, or has serious delusions of grandeur.

What I want to know is... is it completely legal to take photos of someone in a public place? I mean, the restaurant is privately owned, and so I suppose strictly speaking, I should have asked the owner for permission, but then again, how many of us do that while shooting off candids? Most owners don't usually care either way. Was the guy's threat mostly an empty threat?

But if I made the face of this man unrecognisable by blurring and darkening/burning, would it still be OK to post his image on my website?

In some parts of London, it feels like there is a "war on street photographers" at the moment. 🙁

Curious,
Jin
 
At least in the United States, it's been sort of agreed that photography is not allowed in private places. Restaurants are private spaces, so I'd never think of taking a picture inside one... unless I were taking a photo of the decor (which I've done).

Otherwise, photography in the street is perfectly fine and legal.

I was in a situation slightly similar to yours. I took a photo of a nice display of tables (kinda geometric) inside a mall in Chicago... and some people at a table made a bit of a fuss. I offered to send them a copy of their photo, and also assured them that their faces weren't visible as I had taken the photo from above (waaaay above), leaning on a balcony. At least they weren't rude... and I did comply and sent them a print.

It'll be easier for you to ask the restaurant owner/manager if they mind your taking photos of the place (not the customers). And, if you see people who might make a nice pic, ask if they don't mind having their photo taken. That'll save you oodles of trouble.

Good luck next time!
 
My opinion is that if you are shooting for "Art" then go for it, and then apologize if you offend anyone. If you are shooting for "Commercial Sale" then be sure to get permission and get model releases.

I am attaching a photo from my gallery, shot inside a diner and I didn't ask anyone, and of course my camera was quite visible during my stay, and I had no problems at all.

showphoto.php
 
Last edited:
Strictly legally, you should consult the laws/lawyers of your country.
Morally, i would not use the photo like that. Cut the guy off the frame or throw the whole thing away. Even if he was rude, i would respect his wish of not wanting to appear on that photo. You never know his reasons. You might ruin his family life, career, whatever by letting somebody see him sitting in that restaurant.

Of course, i would probably have told him that his wish will be respected but he should work on his social skills esp. his way of approaching strangers.
 
That person was way out of line - as long as your intention was 'artistic' he had no right to complain. There is no 'expectation of privacy' in public spaces, so he and anybody else is fair game for the 'artist'.

Further (although I'm not sure about English law, what follows apllies in the USA and US law is based on English common law), if his manner was threatening enough to cause fear of bodily harm in you then that COULD constitute assault, in which case a properly applied shot of pepper spray becomes self defense.

Lou
 
The man was a fool. Sod him and the likes of him. Step over your anger/hurt/whatever emotion you feel right now about this incident and continue your life. There's no way he'll come and rip your head off if he finds his mug published anywhere. And if he does, sue him till he's in the poorman's house (but it'll never come that far). Life's too short to worry about these boobs.
 
You committed no crime and if he was "embarassed" to be seen in the resturant, he shouldn't have been IN the place. The owner could have asked you to leave (it's his place), but he couldn't demand your film/camera, etc.
A photo of the resturant from the outside is completely OK too, you're not in/on their property.
I guess a lot of bully's can tell when it's OK to be an asshole. For some reason I've never been approached by an irate subject. At 5' 10" /220lbs, I don't look easily intimidated and would have no problem telling them to "F-off" - LOL.
 
The dude sounds like a jerk. Granted, you'd be easier off if you had permission from the owner, but personally, I think there's no harm in grabbing pics *for yourself*. That's not strictly legal, though. Also, in the dude's mind his etiquette may simply be reciprocating what he thought of yours. In that situation, it's take it as good as you give it. If he had pushed the issue with the owner and he or she wasn't pleased, then there might be a real dilemma as to what to do.

Somewhat related, a few weeks ago my girlfriend was doing a video shoot for a TVnews feature on nightlife at the Rivermarket area in Little Rock. They had persmission to shoot in the bars and restaurants, but as they set up, they gave a heads up to patrons sitting in the directon of their shot. The producer even said, "So if you're here with someone other than you're wife, move." 😛
 
The best way to avoid confrontation: never shoot indoors. At least, since my incident described above, I've decided to follow that path.

However, once in the street... I simply don't care.
 
Hold on a second, folks. Let's not go giving legal advice here. Even Roger, who has a UK law degree, is not (I presume) a barrister. Giving legal advice can get one into trouble.

My opinion IANAL (I am not a lawyer, this is not legal advice) is that *if* UK law is like US law regarding private places, photography can be banned, whereas in general, public photography cannot be banned. Further note: this concept is under furious legal and extra-legal assault in the US and the UK in these post-9/11 days.

A restaurant is private property in the USA - and thus, they can forbid photography. That is not to say that they have to - or that they are required to have a policy on the matter at all. It is just to say that they can. They can forbid you to take photographs, they can ask you to stop taking photographs, they can eject you for taking photographs. If the restaurant is in a mall (is that what I read?) then most shopping malls in the USA have a 'no photography allowed without explicit permission from the managers' policy. It may not be posted, but it is kept in the manager's offices and is shown when required - such as when they are having a photographer arrested for criminal trespass for refusing to knock it off when asked.

I'm not saying that people don't take photographs in malls - just that it is generally not permitted by mall owners/operators in the USA. That would apply to any shops in the mall as well.

As far as public photography goes - if the person does not wish to be photographed, too bad for them. It is well-established law in the US that if a person appears in public view, anyone may take their photo and there is nothing they can do about it. If one profits from the image commercially, that's a different story - but it is about the use of the image, not the taking of the image - two different things, you see. The courts in the USA have consistantly ruled that a person may control the use of their recognizable image as applied to commerce (ie, advertising), and if you hold them up to ridicule or make false statements in connection with the image, you can held liable in a civil action (lawsuit). That's why when you see a news story on TV of how terrible it is that we're all so fat, you only see images of fat people's guts and bums, never their faces. That would be holding them up to ridicule.

Getting back to the restaurant. If the owners/managers didn't complain or forbid you to photograph, and they have no written policy against it, then I'd guess you were on solid ground, but a barrister be a better person to ask - this is not legal advice, just an opinion. The diner who took offense - too bad for him.

I am always amazed how many people think that they have some control over who takes their photo - that they can demand you to stop it and you have to comply. And I am amazed at the photographers who think so too.

Look up sometime. Really. If you live in a metropolitan area, you are being photographed more or less constantly. Police, television traffic cams, bank ATMs, you name it. Do you suppose you have the 'right' to make them turn off their cameras when you walk by?

People have the right to control the commercial USE of their images. Not the taking of them.

Best Regards,

Bill Mattocks
 
This was all hashed over at some length in a thread just recently--the difference being we weren't talking about photos in private establishment, which are an entirely different matter than oudoors on the streets. And as I have said previously, it is this "I am an artist and I can do what I damn well please--if you don't want you picture taken then don't go out in public" attitude that will probably result in some highly restrictive privacy laws in the next few years.
The world is changing guys. You better get used to it.
 
“What I want to know is... is it completely legal to take photos of someone in a public place? I mean, the restaurant is privately owned, and so I suppose strictly speaking, I should have asked the owner for permission, but then again, how many of us do that while shooting off candids?”

I am not an attorney, but I did serve as the chief executive of ASMP, American Society of Media Photographers for fifteen years after being a professional photographer for twenty years. So, I am not giving legal advice, but I am stating my opinion based upon many years of dealing with the issue as a photographer and trade association executive.

Understand that I am writing my thoughts based upon law in the USA. I have no background that would allow me a valid opinion about this matter as it happens in countries other than the USA. I do expect that the USA situation might be similar to that of Canada, Australia, and The United Kingdom as our laws are usually similar. But don’t rely on that estimate. I am not certain.

In the USA each person has a Right of Privacy. That right protects in your own home or property. No one can just walk in on you and take your photograph or do anything else unless you permit it. Once you walk out the door into a public place you right of privacy narrows. You have no right to control the actions of others in public places like you do in your home. So, you cannot stop a person from taking your photo based upon your rights. You might stop them by objecting, and you are entitled to do that, but you cannot stop them if they persist unless you physically force them, which would be assault and battery.

What is public place? In the simplest terms it is any place to which the public has unfettered access. When shop is closed it is not a public place, but when it is open it is. Shops invite the public inside, and that makes them public places.

Can a public place restrict your right to photograph? Yes it can by making “no photography” a condition of entry or attendance. That is often the case at performances and some sporting events. But that condition must be clearly expressed and not simply implied.
So when it comes to photography what does the right of privacy protect? It protects you (and others) from having a photograph of you published without your permission. However, that protection has its limits. No one can publish a photograph of you for advertising or trade (business) purposes without your permission, which is usually granted with a model release. But they can publish a photograph of you in editorial applications like books, newspapers, non-commercial sections of Websites. They can hang it on their wall or exhibit is a show, gallery, or museum.

Why is there a loophole in the right of privacy? The simple answer is because First Amendment Right of Free Speech cannot be restricted by Right of Privacy. But Free Speech only extends to commercial speech with limits that are intended to protect the individual from commercial exploitation. Hence the need for model release in many cases of use.

So, you can take those photographs almost everywhere. I do. When I get a complaint my routine is simply to say that I am sorry that my actions upset them, and they can be assured that I will respect their rights just as I want mine respected. That means I will exercise my right to take the photograph and use it in certain ways and not in other ways without their permission.

I have been threatened, shoved, and punched over forty years of taking photographs. Fortunately, the one fellow who punched me was poorly trained in delivering a punch. If you want to get an idea of the kind of photographs I have taken without people’s permission just visit my website (www.rwpwc.com). Click on the Photography link and them on the People link.

I hope I have helped to clarify rather than confuse the matter.
 
Taking the events one at a time:

In the UK you have the right to photograph anything in a public place or anything that can be seen from a public place.

No-one including a Police Officer in uniform has the right to handle you (assault), threaten you (threatening behavior, breach of the peace and possibly assault), your camera (again assault), or to remove your film (theft) because you have taken a shot.

The restaurant is privately owned it would be up to a court to decide if "public place" includes on payment or otherwise as in other acts.

He appears to be a customer and therefore has no say in if photography is allowed as that would be up to the owner of the restaurant.

As for using the picture ... sure you can and I certainly would if I liked the picture.

A useful organisation to belong to is the Bureau of Freelance Photographers (BFF), they provide many useful legal resources, advice and support should things need to be more official.

BTW I'm just a happy member of the BFF and have no other links to them.

Also if a Police Officer ever wants to examine your camera or remove your film (even if you may have evidence of a crime) then they have to obtain a warrant from a court before they have access to your film. By the time they have done that of course you will have given the film to a local newspaper or agency just in case there is a story on the roll that is worth publication and payment 😉

EDIT: Just remembered don't shoot pictures of courts, judges and juvenile defendants / offenders (there are acts that prevents it) and things like the faces of bomb disposal officers defusing bombs (stated case), those are definitely no no !!
 
Last edited:
I didn't mean to impart actual legal advice, either, as I'm so, so far from being qualified to do so. I only meant to repeat what's been said about private property and permission. Personally (not thinking legally) I would be cautious of shooting on private property. And if I were this diner, and let's say I was out of my mind and there with another woman (of course, that woudn't EVER happen, honey), I might be irate and ask the shooter if he had permission to shoot there.

In all likelihood, you could "get away with" this shot indoors. And as has been said repeatedly here and elsewhere, you don't get away with it on public property; you're entirely within your right to take that shot. (crap, was that legal advice?)

What I find more intersting in this situation is the human and social aspect. Talking to people. One of the quotes I now take with me (from the quotes thread) is "All photography is seduction." This must apply to these post-snap confrontations too. I bet that the majority of situations like this one are only talked about btw. shooter and angry guy, and never progress to involving the law. Nonetheless, I'd prefer to diffuse the situation, if possible. But the majority of times that I fall into this this, I take an equally aggressive defense that I'm within my right. Maybe this is because it's always authority-type figures that this happens with me. I don't really know how I'd react to a 'regular' person, esp. one whose photo I took on a private property.

I've gotten great tips here on tacitly, usually wordlessly, asking permission to shoot photos, but how about dealing with the angry guy?
 
stet said:
Granted, you'd be easier off if you had permission from the owner, but personally, I think there's no harm in grabbing pics *for yourself*. That's not strictly legal, though.

IANAL! However, I have an opinion:

Let's define some terms:

Criminal Law: Violations get you arrested and put in jail.
Civil Law: Violations get you sued in civil court. No jail.

If you take photos on private property, and there is no prohibition from the property owner against it, then you're fine. The fellow patron can object all they like - if the owner/manager of the property doesn't have a problem with your photography, then too bad for the patron.

If there *is* a prohibition against photography, it is still up to the owners/managers of the property to enforce it. They have to inform you that you are prohibited from taking photos on their property. They can ask you to stop, they can eject you from the property, they can have you arrested for criminal trespass if you refuse to leave after being so ordered. The *crime* is in refusing to leave the property - there is no *crime* called 'taking photos without permission'.

If you are in public - you are generally permitted to take photos of anything or anyone you like, any time you like. There are some restrictions, and they are becoming more onerous all the time. It is against the law in the US, for example, to take photographs of certain bridges and tunnels and tall buildings, and you *can* be arrested for doing so. In fact, it may be that you can be arrested without the law even being public information - strange days indeed, my friend. One must be careful outside!

There are also some restrictions on taking photographs of private artwork placed in *public* places - at least one artist (sculptor) has succeeded in getting the courts to agree that it is a criminal violation of his rights for others to take photos of his artwork. At least one public park (I believe it is in or near Chicago) has to have off-duty police officers to arrest people who take photos of his sculptures - no fooling.

Now, all that had to do with CRIMINAL law. With CIVIL law, it is a different matter entirely.

Whether you take a photograph of a person inside or outside, on public property or on private property, the US courts have generally agreed that the person or persons who are identifiable in the photograph have the right to control the USE of their likenesses. In general, that means that you must have a 'model release' giving YOU the right to their likenesses before you can sell your photo to an ad agency for a poster on the side of a bus, for example. Additionally, you cannot hold a person up to public ridicule, and you cannot lie about them in a way that damages their reputation.

For example, if you showed a photo of a woman you believed was a prostitute in an art gallery and called it 'Photo of a Prostitute' and the woman could be identified from the photo, she would have actionable cause against you in a civil lawsuit - presuming she could prove that she IS NOT a prostitute. The burden of proof would be on her to prove your statement was false, not on you to prove it was true. However, in England, the situation is exactly the opposite with regard to burden of proof and libel law.

Some people. due to their station in life, or their jobs, cannot usually be libeled, however. I took a photo of two fat cops in Orange County, CA in golf carts and posted them on the Internet - you could clearly see their faces and identify them. However, they are 'public servants' and as such, the right of the public to know what they are up to is seen as overriding their right to privacy and freedom from being libeled (but you can't maliciously lie about them).

If you use an identifiable image of person for commercial use (say an advertisement) in the USA, they may sue you for essentially stealing their right to control (and sell) their own likeness - they'd most likely sue to get what you were paid for their likeness plus punitive damages and attorney fees, etc.

So, to recap...

With criminal law - you can get arrested for taking an illicit photo on private property or public property. Generally, however, you can take photographs of whatever and whomever you like in public places.

With civil law- you can get sued for selling or otherwise commercially using the recognizable images of others without their permission. Hanging their photo in an art gallery or posting it online or putting it in your private photo album is not 'commercial use' in general terms, although you can still get sued - you'll just probably win.

You can also get sued for holding a person up to ridicule or by libeling them (hurting their reputation via the medium of print).

It is an affirmative defense against a libel suit if a) the statement is true, or b) the person cannot be libeled due to their situation (unless they can prove malicious intent).

Here's a cool checklist on US libel law:

http://www.utsystem.edu/ogc/intellectualproperty/libelfrm.htm

Public figures and slander:

http://www.expertlaw.com/library/personal_injury/defamation.html

Thus, when one says that something is "Not strictly legal," you must then ask if they mean according to civil law or criminal law? You can't be arrested for violating civil law - only sued. No one can have you arrested for taking their photo - but maybe for scaling their fence and invading their property to take the photo (if you do that). They can sue you if you sell the photo and profit by it, unless they are a public figure.

Best Regards,

Bill Mattocks
 
kiev4a said:
This was all hashed over at some length in a thread just recently--the difference being we weren't talking about photos in private establishment, which are an entirely different matter than oudoors on the streets. And as I have said previously, it is this "I am an artist and I can do what I damn well please--if you don't want you picture taken then don't go out in public" attitude that will probably result in some highly restrictive privacy laws in the next few years.
The world is changing guys. You better get used to it.

I could not disagree more! The world *is* changing, and photography in public space *is* becoming more restrictive - but I intend to fight it every inch of the way. We will not retain our rights by sighing and saying to ourselves that it is for our own good. That mantra strips rights and ends freedoms.

I won't give up my guns. I won't stop taking photographs in public, when and as I please. I will resist, resist, resist, any attempt, legal or extra-legal, to intimidate me into sitting down and shutting up.

If I gotta, I'll be the guy in durance vile, banging a Yashica GSN against the bars and singing "We shall overcome!" Without my freedom, I have nothing.

Best Regards,

Bill Mattocks
 
I didn't mean to give definitive legal advice; all I said was that with my knowledge (and you're right, I'm not a barrister) the action for assault would almost certainly prevail.

On the same basis, photography on private premises may be forbidden but the forbidding must be explicit; the likelihood of legal trouble if it is not is usually minimal. Offers of violence -- assault, again -- are another matter.

Cheers,

Roger
 
Back
Top Bottom