Street photography and current regulations. Hypocrisy?

[Ko.Fe.]

I went to Hamilton Arts Gallery (one of the oldest in Canada). They have big selection on Vivian Maier photos for long lasting exhibition. Plenty of stranger faces, she didn't talked to, but took their exposures. And now it is in Art Galleries.
Robert Frank went on the trip for Americans and so did Walker Evans.
They didn't asked permission, yet, it is considered now something as national treasure.
It is OK to exhibit and sell books with Winogrand photos of people he took on the street and no permission was asked back then.
This photography of strangers is highly appreciated by galleries and publishers.
Yet...
I was checking what is current status of street photography yesterday in Canada. Just checking.
It is still fully OK to take pictures in public. Anyone you want and close.
But it comes to different from what we see in galleries and books, once you want to show it. Current consensus is - you are only allowed to keep them for yourself and not showing. If you want to show someone face and it is taken to be recognisable - must have permission. Not for selling, just for display.
And it is only OK if you took some street shots and people are visible on the picture, but "focus" is not on them.
So, it is OK to show and sell Winogrand's 1964 photos with people and no permission, but we are not allowed to do the same now.
Hypocrisy?

 

[Phil_F_NM]

It may be the hypocrisy of the Canadian government but those works you cited were made in the USA. So I think the galleries are showing where the liberties of Canadians are being curtailed.

Phil Forrest

 

[charjohncarter]

It seems that every country has their own take on this subject or at least nuances. The end result is you are afraid to do street photography. People feel their rights are being stepped on, governments make ambiguous rules, and the photographer is confused so they don't freely take photos.

 

[cz23]

Current consensus is - you are only allowed to keep them for yourself and not showing...

If you want to show someone face and it is taken to be recognisable - must have permission. Not for selling, just for display...

So, it is OK to show and sell Winogrand's 1964 photos with people and no permission, but we are not allowed to do the same now....

I don't know Canadian law, but all of those statements are false in the USA.

John

 

[Ko.Fe.]

Good to know, John, USA has more democracy and freedom for artists then.

Personally, I'm not afraid to take street pictures of Canada, because current regulations are very democratic at one side.
Under current regulation we are totally free to take any photos on public and of the public. As long as it's not violating privacy. So, if someone takes a pee in public, I'm not into it 🙂.
But if I have picture with someone recognizable in photo and it is posted as contest winner in street photography magazine, then recognizable person in this photo could sue the magazine.
I'm free to take people pictures in public, but I'm not allowed to show them. George Zimbel is allowed. And Fred Herzog. To show and sell. Pictures of people taken in Montreal and Vancouver. So here is no USA involvement, relation to Canada here.

 

[PKR]

I think social media has played a big part in this. Take a photo of someone getting their mail from in front of their home and, if there's a name on the mail box, which is often the case.. the viewer knows what you look like, your last name and what your home looks like. If the photographer notes the city where the photo was made, that narrows your location down.

If "published" on/in social media, thousands or maybe hundreds of thousands of people might view that information. Depending on the caption, more information may be given about you. Many people don't want their lives on display. In today's social/political environment, can you blame them? What if there was a Trump sign visible on the front lawn? What if a frustrated mother was screaming at her kids? Those photos are all legally made, if made from in front of, but not on "private property".

People are flying camera equipped drones into the backyards of homes. They are looking into the windows of homes and apartment buildings now. In many places, that's legal.

I think it best to, put yourself in the position of those being photographed. And also remember, if the subject doesn't know you, you are lumped in with all the stories written about people having been exploited by the worst in photographers.

Being open and friendly with your subjects will go a long way. Tell them exactly what you're doing and respect their wishes if they don't want to be photographed. And, I understand, with street photos, there is often little verbal contact between photographer and subject. But, using Winogrand as an example, he was always smiling and courteous to his street subjects.

 

[Vince Lupo]

I don't think this is correct for Canada -- if it's for commercial purposes (like you're doing it for a company's advertising and it would imply that the person depicted is seemingly endorsing the product), then yes you would need a photo release. But for 'artistic' purposes, you don't need a photo release. If someone, for example, saw a picture of themselves in a newspaper at an event, or as just a human interest image (like a kid eating ice cream on a hot day), could they then sue the newspaper? I think not.

Look up the Canadian Federal Personal Information Protection and Electronic Documents Act (PIPEDA), and see what applies to personal information collected in the course of commercial (remember -- commercial) activities. Any photograph in which a person is identifiable conveys personal information. Thus, in most cases, PIPEDA requires a photographer to obtain consent from anyone that will be identifiable in a photograph. This requirement does not apply to photographs taken solely for journalistic, artistic, or literary purposes. I would not call exhibiting photos in a gallery and selling prints of them to be considered 'commercial' activities. 'Commercial' usually applies to a company or organization, and 'commercial activities' would normally refer to advertising or promotion of a product, company or organization.

Now, as far a publishing them in a book goes, the image on the cover of the book could be construed as 'advertisement' for the book itself, and you'd likely need permission to use that image on the cover, but the contents of the book should not require permission. This pretty much applies to the US as well as Canada.

 

[mpaniagua]

Good to know, John, USA has more democracy and freedom for artists then.

Personally, I'm not afraid to take street pictures of Canada, because current regulations are very democratic at one side.
Under current regulation we are totally free to take any photos on public and of the public. As long as it's not violating privacy. So, if someone takes a pee in public, I'm not into it 🙂.
But if I have picture with someone recognizable in photo and it is posted as contest winner in street photography magazine, then recognizable person in this photo could sue the magazine.
I'm free to take people pictures in public, but I'm not allowed to show them. George Zimbel is allowed. And Fred Herzog. To show and sell. Pictures of people taken in Montreal and Vancouver. So here is no USA involvement, relation to Canada here.

So,I think is mostly that, if you are profiting from a stranger photo, you should share part of that if/when that someone ask for it? Is that correct? Profits could be by directly selling the photo or using as marketing?

Something like this?

https://petapixel.com/2017/01/06/woman-sues-chipotle-2-billion-using-photo-without-consent/

This is very confusing.

Marcelo

 

[Ko.Fe.]

Thank you Vince. I read several sites yesterday and some of them declared what we are not even allowed to show someone face at Facebook without consent.
And I also read PIPEDA explanations, those you have mentioned. They seems to be more official then some private "interpreting" regulations sites. Your explanation about journalistic, artistic or literary purposes makes it more clear to me. I understand now what artistic and journalistic could be, but what is literary? I take someone pictures and make story about it?
It is known case in Canadian court, then some magazine used photo of person and she sued them because story in this magazine was not who she is. She won.

 

[Ko.Fe.]

So,I think is mostly that, if you are profiting from a stranger photo, you should share part of that if/when that someone ask for it? Is that correct? Profits could be by directly selling the photo or using as marketing?

Something like this?

https://petapixel.com/2017/01/06/woman-sues-chipotle-2-billion-using-photo-without-consent/

This is very confusing.

Marcelo

This could be extrapolated at Facebook. Or Flickr. Someone takes photos of strangers close. They are liked by hundreds and thousands. Photog becomes recognizable and LUF publishing his photos and profile. He makes some sells of another photos and gets some assignments, but photos of strangers on Facebook and Flickr were triggering it.

 

[cz23]

This page on Canadian law seems to agree with what Ko.Fe. is saying.

The US and Canada appear to share the law on TAKING photographs. It's all about public spaces and a reasonable expectation of privacy.

If that page is right, where we differ is on the USE of the pictures. In the US we are free to display for artistic purposes, but not commercial promotion. Canada seems to prohibit display without permission, for whatever reason.

If this is true then I guess Ko.Fe. is right about gallery hypocrisy. Although maybe there is consideration for works of art that pre-date the current law.

I suppose the Canadian law would apply to web sites, which would land many of us in jail.

John

 

[emraphoto]

I don't think this is correct for Canada -- if it's for commercial purposes (like you're doing it for a company's advertising and it would imply that the person depicted is seemingly endorsing the product), then yes you would need a photo release. But for 'artistic' purposes, you don't need a photo release. If someone, for example, saw a picture of themselves in a newspaper at an event, or as just a human interest image (like a kid eating ice cream on a hot day), could they then sue the newspaper? I think not.

Look up the Canadian Federal Personal Information Protection and Electronic Documents Act (PIPEDA), and see what applies to personal information collected in the course of commercial (remember -- commercial) activities. Any photograph in which a person is identifiable conveys personal information. Thus, in most cases, PIPEDA requires a photographer to obtain consent from anyone that will be identifiable in a photograph. This requirement does not apply to photographs taken solely for journalistic, artistic, or literary purposes. I would not call exhibiting photos in a gallery and selling prints of them to be considered 'commercial' activities. 'Commercial' usually applies to a company or organization, and 'commercial activities' would normally refer to advertising or promotion of a product, company or organization.

Now, as far a publishing them in a book goes, the image on the cover of the book could be construed as 'advertisement' for the book itself, and you'd likely need permission to use that image on the cover, but the contents of the book should not require permission. This pretty much applies to the US as well as Canada.

This is a much more accurate version of the reality in Ontario. It differs by provincial juristictions (for instance Quebec is much different).

 

[cz23]

Good to know, John, USA has more democracy and freedom for artists then.

At the moment it doesn't feel like we have much of a democracy.

John

 

[PKR]

As a working photographer, before hanging a gallery show years back, my Publications Attorney reminded me that, hanging photos publicly, be it an art gallery, museum or the local café, was "publishing" in the legal world. He was just reminding me that he was ready to collect a fee, if he was needed.

"Publication

Making something known to the community at large, exhibiting, displaying, disclosing, or revealing.

Publication is the act of offering something for the general public to inspect or scrutinize. It means to convey knowledge or give notice."

(I'm sure this applies to social media and this forum too.)

https://legal-dictionary.thefreedictionary.com/publication

 

[Disaster_Area]

To clarify in Canada (I've talked with a few copyright lawyers about this).... display and sale of photos with artistic merit/intent is NOT commercial use. Commercial only applies to advertising, promotion, marketing etc. Basically anything used to promote or endorse a product or service where the photo itself isn't the marketable commodity.

To put it simply... I can create and sell a book of my photos and the photos within the book are "artistic content" and does not require the subjects permission to use. However, I cannot use one of the photos on the COVER of the book or in my marketing campaign without obtaining permission as this is now being used to commercially promote a product.

Same with galleries and prints... I can sell a print of my work without obtaining permission BUT if I put a watermark or logo on the print it's now marketing and I would need permission from the subject.

So back to street photography... it's fine to take a picture of anyone in a public space or anywhere there's no reasonable expectation of privacy... I can post them online in a portfolio, I can sell prints or put them in a book, but I cannot use them in conjunction with my name, logo or product promotion without obtaining permission.

 

[PKR]

To clarify in Canada (I've talked with a few copyright lawyers about this).... display and sale of photos with artistic merit/intent is NOT commercial use. Commercial only applies to advertising, promotion, marketing etc. Basically anything used to promote or endorse a product or service where the photo itself isn't the marketable commodity.

To put it simply... I can create and sell a book of my photos and the photos within the book are "artistic content" and does not require the subjects permission to use. However, I cannot use one of the photos on the COVER of the book or in my marketing campaign without obtaining permission as this is now being used to commercially promote a product.

Same with galleries and prints... I can sell a print of my work without obtaining permission BUT if I put a watermark or logo on the print it's now marketing and I would need permission from the subject.

Edit ..
What about a web or social media page displaying your name in the header, or a common "copyright Joe/sue photographer" under the image?
So back to street photography... it's fine to take a picture of anyone in a public space or anywhere there's no reasonable expectation of privacy... I can post them online in a portfolio, I can sell prints or put them in a book, but I cannot use them in conjunction with my name, logo or product promotion without obtaining permission.

That part about: "conjunction with your name", is interesting. If the print is signed on the face (border) and not on the back, as many do, is that "connecting the image with your name" in a legal sense?
What about your name on the header of a web page or a simple copyright notice with your name under the image?

 

[jsrockit]

To clarify in Canada (I've talked with a few copyright lawyers about this).... display and sale of photos with artistic merit/intent is NOT commercial use. Commercial only applies to advertising, promotion, marketing etc. Basically anything used to promote or endorse a product or service where the photo itself isn't the marketable commodity.

To put it simply... I can create and sell a book of my photos and the photos within the book are "artistic content" and does not require the subjects permission to use. However, I cannot use one of the photos on the COVER of the book or in my marketing campaign without obtaining permission as this is now being used to commercially promote a product.

Same with galleries and prints... I can sell a print of my work without obtaining permission BUT if I put a watermark or logo on the print it's now marketing and I would need permission from the subject.

So back to street photography... it's fine to take a picture of anyone in a public space or anywhere there's no reasonable expectation of privacy... I can post them online in a portfolio, I can sell prints or put them in a book, but I cannot use them in conjunction with my name, logo or product promotion without obtaining permission.

Thi is my understanding of the law as well...

 

[Disaster_Area]

That part about: "conjunction with your name", is interesting. If the print is signed on the face (border) and not on the back, as many do, is that "connecting the image with your name" in a legal sense?
What about your name on the header of a web page or a simple copyright notice with your name under the image?

Signing a print or putting a copyright doesn't count as advertising... but yes, if you use an image of someone on your website in a non-portfolio related capacity, yes, that would be "commercial use" and you would need permission.

UPDATE: I realize I said using a watermark in my previous post would be considered commercial use... what I meant was using a watermark with your logo or branding. A copyright watermark is considered informative and not advertorial if that makes sense. Using a plain text copyright watermark is understood not to be promoting yourself, just informing the viewer of ownership rights. Now if you made it all fancy and clearly a representation of your brand, it may fall in a grey area.

 

[PKR]

Signing a print or putting a copyright doesn't count as advertising... but yes, if you use an image of someone on your website in a non-portfolio related capacity, yes, that would be "commercial use" and you would need permission.

UPDATE: I realize I said using a watermark in my previous post would be considered commercial use... what I meant was using a watermark with your logo or branding. A copyright watermark is considered informative and not advertorial if that makes sense. Using a plain text copyright watermark is understood not to be promoting yourself, just informing the viewer of ownership rights. Now if you made it all fancy and clearly a representation of your brand, it may fall in a grey area.

I think it could be argued that, if you earned any funds from photography that, exposure "made by you, or your agent", be it a web site or any gallery promotion (not including a given image in the promotion but included in the show) is advertising your work or yourself. And any image included is part of the advertising.

I view my personal work this way, and commercial clients often see my personal work or find me through things they have seen publicly. So, if I was in court, I don't think I could defend myself on those grounds.

A legal opinion would be interesting.

Where's Roger?

 

[Ko.Fe.]

Now it feels better!
I'm not into Bruce Gulden's faces (I like how he does it, it is not as simple as it seems), but I'm leaning more to Helen Hill and Junku Nishimura representation of people on the streets. So, I could tag it as art and it is safe to post on Flickr. 🙂

Google, are you listening? This thread should be the first return in search for "taking street pictures in Canada". Not those sites you are tossing in where it is saying how every person visible in the frame should give us permission to post it on Facebook.