Winogrand, Evans, et al, and the legalities of street shooting...

[flamingo]

Walker Evans held onto his subway portraits for 20 years out of fear he would get sued, so I don't think the times have changed much. It was a concern back then, too. In reality you can sue (or atttempt to sue) anyone for anything. I think the reason why these photographers haven't been sued in the past is because it has been so difficult to set a precedent for it. Setting a precedent for a suit would open a can of worms. There really isn't any convincing argument to sue. Even the one you proffer it seems could easily be argued out of court.

Here check this one out and tell me if this person has grounds to sue:
Penny Wood

No. I would say she has no grounds to sue. She signed an agreement in return for reduced prison time.

And Ray you bring up a point. Walker Evans apparently took deliberate action and was welll aware of what he was doing (using peoples photos wothout their permission) for profit or fame. In other words, to put it bluntly, he was sneaky. Yes he used to rig a camera inside his coat with the lens poking through a buttonhole and using a shutter release, would seize the moment. Was it ethical ?

 

[aizan]

sure. the sneakiness was to get natural expressions.

 

[James Burton]

What's the result? Inscription on the coffee mug saying "warning: the content might be hot".

Tee hee hee. Put a DYMO sticker on the front of your camera saying

"WARNING: your likeness may appear in ART"

(add the word 'pseudo' if you suffer from lack of self-confidence like me.)

James

 

[RayPA]

No. I would say she has no grounds to sue. She signed an agreement in return for reduced prison time.

And Ray you bring up a point. Walker Evans apparently took deliberate action and was welll aware of what he was doing (using peoples photos wothout their permission) for profit or fame. In other words, to put it bluntly, he was sneaky. Yes he used to rig a camera inside his coat with the lens poking through a buttonhole and using a shutter release, would seize the moment. Was it ethical ?

On the Wood issue, I agree. I brought her situation up because I was discussing it the other night with some friends who felt she was misled. Apparently, (and this is not covered in THIS article) she was led to believe that her image would be used in a low-key fashion and only at some local drug treatment programs. The posters ended up being plastered all over her home town and are now out on the 'net, causing her public humiliation.

Her situation is not too far removed from images we might take and post here of a homless person or any other individual whose condition, or situation, when uploaded to a publically viewable website would cause them shame or humiliation. That picture that we took of that kissing couple on a park bench, who we thought created a romantic composition in our viewfinder, could in fact be a couple having a clandestine affair. If our posting that image here creates a catastrophic situation for one or both of them, are we liable. (I'm not asking for an answer—just adding a wrinkle to the discussion).

Anyway...good thread. 🙂

 

[TPPhotog]

....... And Ray you bring up a point. Walker Evans apparently took deliberate action and was welll aware of what he was doing (using peoples photos wothout their permission) for profit or fame. In other words, to put it bluntly, he was sneaky. Yes he used to rig a camera inside his coat with the lens poking through a buttonhole and using a shutter release, would seize the moment. Was it ethical ?

I consider taking street shoots in public places as fair game as long as the pictures not not intended for commercial use as in advertising a product or to mis-represent those people in the picture.

Using a hidden camera is as un-ethical and immoral as hidden speed cameras. I always have my camera in full view, which I consider is fair game. If people don't want to be photographed they have the option to turn away or move out of shot.

I have many pictures stored and on use with the local photographic archive. They include the area and the people of the area. As such any pictures exhibited or sold are as pictures of the area even if one person is the focal point. Happily in the UK for the moment that is acceptable use.

 

[RayPA]

sure. the sneakiness was to get natural expressions.

Evans' situation is probably permissable for the above reason: artistic license (whatever that means!). It wasn't like he had a camera in his shoe looking for some upskirts shots. 🙂

 

[RayPA]

...Using a hidden camera is as un-ethical and immoral as hidden speed cameras. I always have my camera in full view, which I consider is fair game. If people don't want to be photographed they have the option to turn away or move out of shot....

How ethical is the "hip-shot" then? In this situation the camera is "pretending" to be unused, yet in plain view. The purpose of a hip-shot is really no different from a hidden camera.

 

[TPPhotog]

How ethical is the "hip-shot" then? In this situation the camera is "pretending" to be unused, yet in plain view. The purpose of a hip-shot is really no different from a hidden camera.

Having tried it on one outing I came to the purely personal decision that it depends on the subject.

If it's to capture someone I know either for fun or to prove to them they are photogenic then it's acceptable. They also have the option of the print being used or not as part of my work.

If it's people I don't know then it doesn't feel right to me. I'd rather stand there in full view and grab the shot looking through the viewfinder. OK I accept that the action of taking the shot only gives people a couple of seconds, however on the other hand I'm doing it in full view.

Wise man says if you don't like being photographed beware of anyone with a camera in the street, especially tourists 😉

EDIT: I guess the real difference between a hip shot and a concealed camera is that if a camera is on view any idiot knows it can be used at any time. But with a concealed camera no-one knows the camera is even there.

 

[Little Prince]

I don't know, this is so touchy that I can't form a definitive opinion. In any case opinions were asked for so that's what I'll provide.

Ray, I know you didn't ask for an answer, but just my thoughts to serve as an example:

"That picture that we took of that kissing couple on a park bench, who we thought created a romantic composition in our viewfinder, could in fact be a couple having a clandestine affair. If our posting that image here creates a catastrophic situation for one or both of them, are we liable."

If it was clandestine and they didn't want to risk exposure (no pun intended), they should have taken due care. If they pursued it in public, well they're game. I'm not being a jerk here. I feel my argument is valid because we aren't in any position to make a judgement on these people (in terms of right or wrong). To put it very abstractly, if they were right (whatever that means) we shouldn't be risking their situation and if they were wrong (again abstraction) we should be. This particular example may seem dodgy. Instead consider a criminal act in progress that you have the chance to shoot. Should you or should you not? Then remove yourself to a case where an act is being performed that may be criminal or may not (depending on data that you have no access to). A random example is a person withdrawing some money from a safe. The man may be the owner of the money or not. You don't know. There is an analogy here with the couple.

What I'm trying to say is that often these things are subjective and dependent upon such abstract notions as right and wrong which may vary from person to person. It is precisely to remove such subjectivity that some rules (laws) exist. Therefore, we would all be making it much less chaotic if we just stuck to the laws (assuming they were formed in the right way). Hence, if the law says you can shoot in public and so forth, go for it (if you have the guts - me, I don't/ haven't had so far). If you are able to remove self-doubt and stick by your lawfully defined right, you're not being a jerk.

I hope I didn't come off as too argumentative. It's just that discussing these things makes it all sound too serious. There's no easy way of dealing with some things.

 

[canonetc]

INteresting how releases of the basic kind enable photographers to license the photo to anyone for anything, including Hustler, Apple or Kentucky Fried Chicken. Public Domain means public, but the "public" know little to nothing about photographer's rights or their own. Takes research. Okay, aside from the obvious, an example such as Steve McCurry and National Geographic making megabucks on the Agfhan orphan photo is an interesting one too. He later (either from guilt or simply for a good story idea) tracked the girl, now a grown woman, down and then he establlished a "fund" to help with women's education, I believe. So, he gave back......eventually.......

I think if you became a "big" name artist, the persons photographed in the street/public would not only want a print, but would brag to their friends.. "I was photographed by so-and-so, and he/she is famous!"

We're in the world. if you don't want to be photographed, then don't leave your house. We're watched all the time anyway. I find it interesting people will complain about being photographed on the street, but don't say a thing about how often they are violated by simply surfing the web (personal info, identity theft, marketing studies, etc). Big disconnect! They/we accept that as, "well...that's just the way it is.....". How confused is that!?!

cheers,

chris
canonetc

 

[jan normandale]

Random thoughts

1 I recently watched a short documentary on cameras in public space, specifically to monitor and record all people in the range of the lens. Obviously the companies and owners don’t care what I think about my rights.

2 I take a picture and randomly capture someone’s image. I don’t make a fortune, probably they will never care or notice. I take a picture and randomly capture someone’s image and make a fortune. I’m not a professional. I get a letter. I either retract the pix or agree to some compensation that is ‘normal’ for a pro model. I can handle that.

3 I take a picture and randomly capture someone’s image. They are doing something visible in public. They are ‘embarrassed’ or ‘caught’. I am/was not the only one to have been present. They have engaged in risky behaviour. I’m not on the line for their acts, they are.

So go take a picture. If you want to make money ask for permission and a release. If not post on the web. Pay if you make money, don’t if you don’t.
Retract if asked or settle.

My daughter who is in documentary film advises that now there are so many permission issues even for amateur film makers based on these issues that many are going to throw in the towel until this economic / legal freeze is resolved. The arts are losing to corporate commoditization of public property.

To Quote Big Boy Caprice ‘Upsetting…’

 

[Heath]

Tee hee hee. Put a DYMO sticker on the front of your camera saying

"WARNING: your likeness may appear in ART"

(add the word 'pseudo' if you suffer from lack of self-confidence like me.)

James

Better still, put that slogan on a T-shirt.

Heath

 

[TPPhotog]

Better still, put that slogan on a T-shirt.

Heath

At first glance I laughed at this one, but on second thoughts I like the idea. "Warning Aspiring Street Artist At Work". Might even bring a smile to some of the people being shot 😉

 

[James Burton]

At first glance I laughed at this one, but on second thoughts I like the idea. "Warning Aspiring Street Artist At Work". Might even bring a smile to some of the people being shot 😉

Or even just "Watch my aspiration" ... for the t-shirt you know.


James

 

[taffer]

Now, if they took a photo of me in my home in that bubble bath with Milla Jovovich, that's another story😀 (Sorry this idea comes back in my brain.)

Hey ! You too !? Geesh !!! 😛

We're in a world where somebody falls on the street and the first thing he/she thinks about is to demand somebody else. We always want a responsible. We demand the photographer that took that photo but we know that our personal information is used in thousands of databases and bomb us with advertisings and we agree with that and say nothing.

I'm sorry but if I had to think about all the possible legal/ethical problems when taking a picture, I'd rather be leaving the lens cap on and moving to another field like flower photography or something. And that would be until somebody would come up with a ban for environmental reasons.

"W.ww.w.what !? Did you take my picture !!?"
"No. I just captured some of the fotons you were reflecting"

😛

 

[kbg32]

From: http://www.answers.com/topic/street-photography


Legalities

Your rights as a Street Photographer

General

Photographing without permission

In the United States, anything visible ("in plain view") from a public area can be legally photographed. This includes buildings and facilities, people, signage, notices, and images. It is not uncommon for security personnel to use intimidation or other tactics to attempt to stop the photographer from photographing their facilities (trying to prevent, e.g., industrial espionage), however there is no legal precedent to prevent the photographer so long as the image being photographed is in plain view of a public area.

On public property

See above.

Publication

In general, you can not publish someone's image to endorse a product or service without first acquiring a "model release," which is (usually) a contract between the publisher or photographer and the subject.

Defamation

It is somewhat difficult to imagine a hypothetical scenario in which a photograph, by itself, would be defamatory, since the key element of defamation is falsity. Perhaps if a person was photographed in such a way that made them appear to be engaging in some indecent activity, it could qualify as defamatory. Digital editing of photographs certainly opens the floodgates for defamation because it is easy to turn a formerly "true" photograph into one that does not depict anything near the truth.

Invasion of Privacy

In 1890, Samuel Warren and future Supreme Court Justice Louis Brandeis published "The Right to Privacy," which made their case for recognition of invasion of privacy as a legal tort.

Fifteen years later, in the case Pavesich v. New England Life Insurance Company, a Georgia court was the first to rule on the balance between the right to privacy over freedom of the press, when it found that Mr Pavesich had been wronged by the appearance of an unauthorized advertisement in which his photograph appeared. The court at that time ruled that commercial usage did not have the same press protections as other forms of use.

Earlier, in 1893, the case Corliss v. Walker had set the related precedent that non-commercial use, in this case an unauthorized biography, was indeed an example where press freedom's inherent public interest could not be overruled by the right to privacy. These two cases along with the abovementioned "The Right to Privacy" have become the basis for almost all US law with respect to the balance between freedom of expression and individual privacy.

Some other restrictions of photography exist in the US, but most have to do with either commercial use of a space (such as forbidding photography inside a private building) or national security (such as restrictions on airport security areas or military installations).

Also have a look at http://www.photopermit.org/

Cheers,

Keith

 

[sooner]

Great thread, but I feel compelled to make a couple of points:

1) The McDonalds hot coffee case is not as absurd as it sounds. Apparently McDo served coffee so hot that it would cause third degree burns within 3 seconds, and knew it, and continued doing so after receiving countless complaints, so the jury slapped a big punitive damages award on them to make them care about burning people for no good reason. Now, their coffee is just so hot as to cause 3rd degree burns within half a minute--or plenty of time to do something about spilled coffee.

2) Warnings are only required when there is a danger that is not open and obvious or known to the "reasonable person." What is reasonable is subjective, of course, meaning what does a judge and jury consider reasonable. Most companies post warnings even where it is obvious just to be safe, legally speaking. But many do so after ignoring many complaints and reports of problems.

Sorry to be so serious and non-photography related here, but I'm only reacting to some cavalier attitudes on this thread about "frivolous" lawsuits. Most are not so frivolous, and the alternative seems to be Congress restricting our rights to sue big companies that would rather keep making an unsafe product than spend an extra dime to make it safe.

 

[T_om]

Great thread, but I feel compelled to make a couple of points:

1) The McDonalds hot coffee case is not as absurd as it sounds...

Well, yes... it IS as absurd as it sounds. The lady involved played the jury lotto and won.

... served coffee so hot that it would cause third degree burns within 3 seconds, and knew it, and continued doing so after receiving countless complaints

"Countless" complaints. Please. This is pure hyperbole and exaggeration.

In the trial it came to light that McDonald's had received 730 TOTAL complaints during a ONE YEAR period. Do you have any idea how many cups of coffee McD's serves in a year? Do you have any idea what percentage of coffee sold the 730 complaints about it being too hot represent? 730 'too hot' complaints is statistically as important as a pimple on the ass of a flea biting an elephant.

...so the jury slapped a big punitive damages award on them to make them care about burning people for no good reason

"No good reason"? Do you know why the coffee was that hot to begin with? Apparently you think it was deliberately aimed at burning some old bat that was stupid enough to put a cup of hot coffee between her legs and open it in a moving vehicle. Do you seriously believe this? Your flippant "make them care" remark shows the bias in your attitude about this. Hate big corporations, do you?

The jury took one look at the old lady, felt sorry for her, and believed her lawyer when he framed the whole lawsuit as an attack against a "huge" corporation that could afford to pay for this nonsense. They swallowed the bait hook, line and sinker.

This was not only a frivolous lawsuit, it was the poster child of frivolous lawsuits and is now being taught to every up and coming ambulance chaser shyster in every law school in the world.

Get rich quick. Play the jury lotto. You have a MUCH better chance winning the jury lotto than the megabucks drawings.

Tom

 

[flamingo]

From: http://www.answers.com/topic/street-photography


Legalities

Your rights as a Street Photographer

General

Photographing without permission

In the United States, anything visible ("in plain view") from a public area can be legally photographed. This includes buildings and facilities, people, signage, notices, and images. It is not uncommon for security personnel to use intimidation or other tactics to attempt to stop the photographer from photographing their facilities (trying to prevent, e.g., industrial espionage), however there is no legal precedent to prevent the photographer so long as the image being photographed is in plain view of a public area.

On public property

See above.

Publication

In general, you can not publish someone's image to endorse a product or service without first acquiring a "model release," which is (usually) a contract between the publisher or photographer and the subject.

Defamation

It is somewhat difficult to imagine a hypothetical scenario in which a photograph, by itself, would be defamatory, since the key element of defamation is falsity. Perhaps if a person was photographed in such a way that made them appear to be engaging in some indecent activity, it could qualify as defamatory. Digital editing of photographs certainly opens the floodgates for defamation because it is easy to turn a formerly "true" photograph into one that does not depict anything near the truth.

Invasion of Privacy

In 1890, Samuel Warren and future Supreme Court Justice Louis Brandeis published "The Right to Privacy," which made their case for recognition of invasion of privacy as a legal tort.

Fifteen years later, in the case Pavesich v. New England Life Insurance Company, a Georgia court was the first to rule on the balance between the right to privacy over freedom of the press, when it found that Mr Pavesich had been wronged by the appearance of an unauthorized advertisement in which his photograph appeared. The court at that time ruled that commercial usage did not have the same press protections as other forms of use.

Earlier, in 1893, the case Corliss v. Walker had set the related precedent that non-commercial use, in this case an unauthorized biography, was indeed an example where press freedom's inherent public interest could not be overruled by the right to privacy. These two cases along with the abovementioned "The Right to Privacy" have become the basis for almost all US law with respect to the balance between freedom of expression and individual privacy.

Some other restrictions of photography exist in the US, but most have to do with either commercial use of a space (such as forbidding photography inside a private building) or national security (such as restrictions on airport security areas or military installations).

Also have a look at http://www.photopermit.org/

Cheers,

Keith

Flamingo here, the starter of this interesting moral, ethical, and legal discussion. I must say I am glad to see the wide range of responses that I knew this thread would incite. Stimulation of the brain is good, as well as seeing everyone's viewpoints.

So do I understand correctly ? These are Federal LAWS and cases, Keith, that you cite above ?
So not only was Winogrand, Evans, et al, acting in an unethical manner with their sneaky "ambush" tactics, but by not obtaining proper signed model releases they were also breaking the law, as is any other photographer who acts in a similar manner today.

Once again, as I mentioned earlier, and going back to the gist of my original question, is not the simple act of a photographer publishing, marketing, and selling a book of his street photographs as "art" taken of people without their permission, whether the photos were taken in public or not, isn't that act in and of itself considered endorsing a product, as specified in the "Publication" clause, that Keith quotes above ?

 

[RayPA]

...is not the simple act of a photographer publishing, marketing, and selling a book of his street photographs as "art" taken of people without their permission, whether the photos were taken in public or not, isn't that act in and of itself considered endorsing a product, as specified in the "Publication" clause, that Keith quotes above ?

I would say that it is obviously not.