Photographing people without their knowledge

[Matt. K]

Gary has locked the rather lively debate on the original thread...however I feel that it needs a summary..or ending. I think many folk got something positive out of it but some folk got a bit emotive. So this is what I want to leave you with...

Gentlemen
Thank you for your thoughts and comments. There are many that I agree with and a few that I don't. I should mention now that the image was a very long shot taken with with 35mm equiv:495mm. The subjects had no idea they were photographed. I have no idea who they are or what they were talking about. They were plainly visible from a public place and I, and any other photographer, is legally entitled to take images like this. This is because THEY ARE IN A PUBLIC PLACE.i I also am liable to be photographed like this and without my knowledge. I cheerfully accept that. Many folk are not aware of the frequency at which their image is recorded when they move about the CBD. Let me ensure you that if you catch a train, get off at Town Hall and walk to the Opera House...almost your entire journey is recorded photographically. This is a good thing and many serious crimes have been solved by the fact that criminal morans do not know they are on candid camera.
Morally...I have no problems taking this kind of imagery...however, I am very cautious about how I might use the imagery. I know that I cannot use the images for promotional reasons and I know that if my use of the images causes the subjects any harm, either financially, professionally, or socially, then they have the right to sue me for damages. I know that I can use the images for "personal" reasons or exhibit or publish the images and sell them as works of art.

I would never be so rude as to use a wide angle lens and begin photographing people unless I had their permission. (There might be political or legal/moral reasons to break this rule). I am aware that there are many reasons why some folk would object to being photographed such as religious, cultural, medical/personal, hiding from ex-wife or police etc. I would respect those folk and not photograph them unless there was some kind of extraordinary reason to do so.

Australia is a free country. Many fine men lost their lives on the battlefield to ensure it stayed that way. Do not give that freedom away lightly. Use it responsibly. Look at the many countries today where you can be imprisoned or shot for taking photographs of almost anything that is not directly related to your immiediate family. Do you want to live in a country like that? I don't. So I use my freedom responsibly and ensure that no one trys to put an embargo on it. When those security guys come wandering over to me and say, "Sorry Sir, You can't take photographs here!", then I say, "Who the hell said so?".

There was a time when wherever there was a problem...the Government would handle it and end it. Today, however, whenever there is a problem...the government enacts new laws and legislation giving itself and the police more power. This is scary because if the problems don't go away then eventually we will be a police state. There will be no freedom. Each and every one of can help ensure that this freedom is not easily taken away by ensuring that no one intimidates us when we exercise that freedom. The weakest thing you can do is put your camera back into its bag and say, "Sorry Sir. I didn't know!".

[kipper]

Many folk are not aware of the frequency at which their image is recorded when they move about the CBD. Let me ensure you that if you catch a train, get off at Town Hall and walk to the Opera House...almost your entire journey is recorded photographically. This is a good thing and many serious crimes have been solved by the fact that criminal morans do not know they are on candid camera.

This is quite correct, we are recorded a many a times while we're at work (most buildings have CCTV), or walk through a shopping centre, catch a train etc. These images are used purely for maintaining security at these venues, however it's only at times when this information is misused by people lacking any morality that it becomes a problem and eventually ends up in a tabloid, internet, used to bribe somebody etc.

[Onyx]

While it may be completely within one's legal right to take pictures in a public place, some people have ethical concerns and/or other personal issues with the pursuit, thus I believe they should be free to refrain from participating in such activities.

From the other perspective - I have experienced having a camera of a stranger pointed at me in a public place, even when as a photography enthusiast I know and understand it not to be illegal, it still prompted me for whatever reason to subtle raise my hand and salute the camera with my middle finger. I felt 'uneasy' - I can't quite quantify or describe the emotion adequately... but if I had been shot with a longer lens and was totally unaware of it, then I'd most likely have no problem.

In another scenario, I had spotted a street/candid shooter doing his best to snap long range shots at a popular tourist location in Macau half in hiding. I took my camera/lens and pointed it at the person, hoping to take a pic of him taking a pic - but when he noticed me doing so he promptly fell out of view and disappeared never to be seen again...

I dunno, to me it's not just a clear cut: "if it's not illegal it's alright".

[Dargan]

Wow!! Have just read the text of the precursor to this thread on "Invasion of Privacy" Reminds me of the park bench shot in Brisbane which also ended up being locked. This is an obviously touchy subject. However, everyone is entitled to a view and what better place to express it so long as there is some substance to comment and some manners in the saying. That is really the point I want to make in the context of photography. I cannot see from that photo that Matt was being 'intrusive', there was no invasion of 'personal space'. This differs for individuals and interestingly between cultures but as a general rule about .5 to a metre distance is a talking space where people in this culture feel comfortable. That may be quite different for someone holding an SLR though. Even given that information on personal space I can see no evidence of that in the expression of the individuals photographed, they were unaware of the shot, and as they are in a public space any photographer who took this shot is not only legally allowed to do so but has not invaded the personal space of the individuals. This is showing respect for the individuals photographed and is really the point of a street photographer, unless they are into photgraphing streets alone (or brick walls in MattK's case )
Look it wouldn't worry me, in fact I'd feel chuffed that anyone would find my visage sufficiently interesting to record it. From my reading a lot of serious photographers of the street used Leicas with rangefinders that were silent and small compared to SLR's. Using an SLR with a longer lens can hardly be called intrusive then because you are out of the subjects zone of physical concern but much of the debate seems to rotate around whether the very act of taking the photo is right. Many respondents have said they would ask permission out of courtesy and I agree with this if I was in the discomfort zone of a subject, Other than that no, I would not do so and would not feel morally obliged to, to do so would almost certainly ruin the element of the shot that would have interested me in the first place. One last issue is that there is no simple black and white answer to this general topic ( I say that after following the much earlier storm over the man photographed on a park bench in Brisbane), if the subject of the intended photo were to be included in the decision about whether you take the picture then that might preclude you from taking a shot regardless of the lens you used. For example a person in agony after a car accident and in the act of dying. That would be a difficult decision to make as there could be sound reasons for recording that image in the best technical way.

Moral philosophy and photography , you have to hand it to DSLR Users we cover the 'spectrum' here, but these really are fundamental questions for the equipment we use. Probably said too much anyway, how many successful garrulous street photographers are there anyway?

[Steffen]

Thanks Matt for the key note

I cannot believe this has stirred up so much emotion. My stance has always been that I don't object to anyone taking my picture in public without asking me (public toilets don't qualify as "in public"), but I do very much and vehemently object to commercial exploitation of my image.

Hence, my question is, what are the regulations in Oz as to when one has to obtain a model release from people recognisable in commercial shots? What about shots publicised without commercial intent (like on this forum)?

I've got a recent case in mind: the son of friends of mine (aged 19) featured on the top half of the front page of a big Sydney daily. The shot was taken at a popular Darling Harbour dance club, and was used to illustrate an article about the clubbing scene. The boy wasn't asked for permission or anything, although the shot was better than any passport photograph could ever be, let alone the fact that he was shirtless and surfing the crowd... I advised the mother to contact the newspaper for compensation but she was brushed off... Makes you wonder.

Cheers
Steffen.

[birddog114]

What are the consequences of all the photos which PJs had on the papers during the last week about the Cronulla story? or other incidents happened around town?

[Sheetshooter]

In the vast majority of the literature on street photography by those with the reputations it is clear that the preferred option is to work at closer range with shorter focal length lenses. In the 'image' it places the subject in context of surroundings and provides a sense of interaction for the viewer. Lee Friedlander, Garry Winogrand, Joel Meyerowitz, Walker Evans, Harry Callaghan, Joel Sternfeld, Henri Cartier Bresson, Frank Horvat, Thomas Struth, and Australia's own Marco Bok all favour this technique irrespective of format from 35mm to 8x10 ... and they are the guys with the runs on the board so it is not just THEIR preference but clearly also the preference of those who purchase or publish their work. It is also a significant factor in why so many have chosen the Leica Rangefinder as their weapon of choice - it's long lens characteristics are appallingt to non-existent .... the Leica is all about standard lenses and shorter.

In so far as pictures of people published in the Press are concerned - if it is deemed as newsworthy then it is in another legal genre all together. A given photograph of a person engaged in some activity - even a benign and bland activity like just sitting there posing - may be published as NEWS without a talent release or any other authorisation. But if the same photograph is used for another purpose such as the promotion or advertising of a product, service or idea then it does become necessary to seek a license or release for publication or distribution and invariably that Release needs to be based upon the receipt, by the subject, of 'valuable consideration'.

What interests me greatly is if, as yet, there has been a determination or precedent set as to whether or not the posting of a private image - any image - on the internet (in various Fora such as this) is considered a PUBLICATION or DISTRIBUTION of that image. Given the global access of such images by populations far greater than any single city or country and certainly far greater than the number of people that would see a hoarding or an advertisement contained within a magazine or newspaper I guess it is only a matter of time until someone has a crack at it.

Cheers,

[KerryPierce]

To me, the issue boils down to fundamental freedom and individual rights.

My rights end, where your rights begin, and vice versa.

With this issue, there's a serious and significant overreaction to photography, by the general public and governments.

The issues of kiddy porn and terrorism have been vehicles utilized to advance the suppression of photography. For what reason, I can not fathom.

Seriously, how can a photo of a person or child, harm the person or child, unless there is something illegal going on to begin with?

I am deeply troubled by this trend of over reactionary mindset that is being peddled to the public.

In a free society, people are presumed innocent until proven guilty. Now, it is too often the other way around. You can't take photos of kids, because you might be a pervert. You can't take photos of trains or lakes because you might be a terrorist. You can't take photos at a nude beach because you might be exploiting females, which is offensive behavior, according to the court ruling there in Oz.

So, do we wish to live as free men or slaves to the whims of someone who knows better what is good for us?

Freedom is not free. You can't expect to have freedoms if you aren't willing to grant those same freedoms to all. You can not say, I am a responsible person, but you might not be, so you can't be trusted to have those freedoms.

Freedom is not without risk. There are people that will overstep the bounds of their personal freedom. In that case, those people are dealt with, individually, while allowing the general populace to remain free. To be free, that is the way it has to work. There is no utopia.

[Dug]

After an article in Capture magazine one of the leading law firms gave an opinion on Model releases that was interesting

Basically you cannot sue someone in Australia unless you can prove loss. If you lose money you can sue, if you cannot prove you have lost money there is no case and no case to answer. If I make money from you you still have not lost anything, so cannot sue.

IE: the newspaper is OK to take and print a photo of the person crowd surfing and can even charge them if they want to buy a copy.

I wrote to them and received this kind reply Letter and reply below.

FOR NO CHARGE

It is good to meet a Good Lawyer!!! There are actually a lot of them out there.


I have not mentioned their name but if anyone needs it I can supply it.

cheers doug
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Dear

I read with interest your article in Capture regarding model releases.

While I have felt and believed model releases are not worth the paper
they are written on, I was wondering if you could possibly expand or
explain why model releases of "ordinary" people things and places are
unnecessary.

I always try to explain to my subject who I am, what I am doing and ask
permission of a subject or guardian before photographing and if I feel
the situation requires I ask for a model release. The stock library I
supply, Alamy.com, is becoming more insistent on releases for all
images.

It would just help if you could clarify why you believe standard
releases are unnecessary.

(I take this to be informal information only and no legal opinion is
requested or implied:-)


cheers Doug Steley PS thanks for the stuff on Moral rights too, a very good point.

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My comments relate to civilized countries only - Australia, NZ, Singapore, UK etc - not America. Remember that a stock library may be worrying about supplying a US customer who may, because of US law, want to have a model release. It may be unlikely that an Australian will sue someone using New York law, but it may be a policy requirement, and that's that.

Having said that, the situation is plain. If you are a famous or notorious person, in the business of giving sponsorships perhaps, then to use a photo of you to advertise something may be misleading or deceptive people that you have given an endorsement of some kind, in breach of s. 52 and/or 53 of the Trade Practices Act 1974 (or equivalent State or Territory legislation). That is still a bit of a maybe - some people regard the Paul Hogan case concerning Hush Puppies (Hogan v Pacific Dunlop) a very high water mark in this area.

Likewise, if a person is recognizable, like Cardinal Pell, to use him in an advertisement advertising sex shops or birth control or something might be defamatory (putting aside legitimate and obvious parody, by which no-one is deceived).

That's about it for Australian law. There is no other basis for a legal complaint.

I hope that clears that up. I will send you an article about advertising legal issues generally, if you want.

Again, no charge )



----------------------------------------------------------------------------------

I hope this never changes.

cheers doug

[Glen]

Doug, thanks for that, very interesting info, especially in context of these two threads

[Sheetshooter]

Hhhm, even with qualified professionals such as doctors and lawyers it is often wise to seek a second opinion. Advertising agencies and publishers are pretty consistent in demanding that releases from talent be included with jobs.

Cheers,

[Dug]

I think it is called "Covering ones ass"

Especially if you are using "Professional" models then if no contract exists they can sue for loss of income if the image sells.

[Sheetshooter]

Yes Doug,

Agreed. But elements of that letter could prompt some folk to feel that Releases are never needed. Mind you, I recall an incident many moons ago where one of the biggest Aussie libraries was sued for the use of a picture of a house for which they had no Property Release. As always with the law it comes down to who presents the most convincing interpretation on the day ... and who can afford the fees. In Australia, irrespective of win, lose or draw Rumpole always gets paid.

Cheers,

[thaddeus]

sheetshooter,

I think you've brought the property example before. I'll therefore give you the same response: if it was an out of court settlement, it has no bearing on Australian law.

[Onyx]

Let's take this hypothetical one step further - say you've taken a picture of someone in public...

That person takes offense for whatever reason and asks that you cease taking photos. Would you comply or go on taking further pictures of them knowing you're fully within your legal rights to do so?

If they asked you to delete the picture you had taken of them, would you comple or refuse? Knowing that you're within your legal right to refuse.

If after taking the picture the subject (a person) is clearly distrought by your actions but does not approach you to make any demands - would you keep the image you had just taken or would you feel morally compelled to delete it?

Where does one draw the line?
I firmly believe the law does not replace politeness in a society. Sometimes you can be legally right and still be an arsehole (yes, you can read my bias into the above hypothetical here - I think if you've upset your subject in any way partaking in street/candid photography you're an arsehole).

[MHD]

Interesting points Onyx which in my opinion all have to be looked at in context

I think it all comes down to the merit of the photo, for example if there is a protest (or riot!) I will have no problems snapping away even if asked not to by the protesters...

On the otherhand, I probablly would not shoot a couple of people having a boring lunch, there is no merit, except perhaps for the purposes of illustration

I think you have to use your judgement and think of the final product, if it is going to be a shot with photographic or editorial merit it is worth pushing it to the finer line of the law as it stands, if not, then you have to ask yourself is it worth putting people off...

[Dug]

on the other hand I regularly photograph people who park in my driveway

we live next to a school sports oval and saturday soccer and cricket is a real pain people taking kids to sport will not walk more than 10 yards to get there.

I always ask politely for them to move and if they refuse out comes the camera and I start snapping away.

I have been threatened sworn at and spat on (This is by parents attending a catholic school event) countless times I have been told "You cannot take my photo I am going to sue you". SO far no letters from lawyers

Their moral seems to be I can do what I like to inconvenience you buy don't you inconvenience me.

A little off subject but where would newspapers be if they could not photograph people in public places?

This is a part of our rights and civil liberties.

[sirhc55]

Funny thing is that I remember the days when people would actually pose for pictures taken by a complete stranger

[Dug]

we went to PNG we had to stop people from getting in front of the camera up there!!!!

[Onyx]

Doug, you're a prime candidate to bring your local towie good business...

Chris - it still happens today, to my surprise... Following our forum famous social photographer Wendell as he does his thang at the local nightclub/pub, he manages to get people to pose for him!

[MHD]

what club??? As some will remember I was evicted from a club for flashing around my d70+kit lens...

[MHD]

oh and I was shooting friends, with their permission... (But the catch is this was private property...)

[sirhc55]

The main problem is the ordinary persons’ perception of what they believe the law means.

A New York psychologist experimented with a group of 50 people, all of whom had witnessed a murder. The result was that there were 50 totally different views of what had happened - and this is exactly how the law is perceived - everyone has a different perception of how a particular law applies. Generally one in fifty is correct

[Oneputt]

One in fifty Chris? Must be me then

[myarhidia]

Might be going on a tangent here however last week on one of the current affairs program, they said the law states you can put surveilance camera's up onto your property even if they are pointed into your neighbours back yard. The only "law" you had to obide was that they had to be out in the open, i.e. not hidden cameras.

[KerryPierce]

Let's take this hypothetical one step further - say you've taken a picture of someone in public...

That person takes offense for whatever reason and asks that you cease taking photos. Would you comply or go on taking further pictures of them knowing you're fully within your legal rights to do so?

That would greatly depend on the reason I was taking their photo. Under normal circumstances, I would not continue to shoot photos of them. That's always been my practice.

If they asked you to delete the picture you had taken of them, would you comple or refuse? Knowing that you're within your legal right to refuse.

Dunno. It would depend on the circumstances and the attitude of the person.

If after taking the picture the subject (a person) is clearly distrought by your actions but does not approach you to make any demands - would you keep the image you had just taken or would you feel morally compelled to delete it?

What moral issue is there? If it is immoral to take the photo, then it is immoral, whether or not the person objects. That's no different than stealing or murder. Is it only immoral if you get caught doing the dastardly deed? I don't think that it is.

What if you didn't take their photo, but the person was distraught or angry, thinking that you had? I've had that happen, on more than one instance. Regardless, his rights don't trump your rights.

Standards of conduct are not necessarily moral issues, or even issues of right or wrong. Such standards vary tremendously, across the various cultures and subcultures.

Where does one draw the line?

Where ever you're comfortable drawing it, so long as it is on the side of legality.

I firmly believe the law does not replace politeness in a society. Sometimes you can be legally right and still be an arsehole (yes, you can read my bias into the above hypothetical here - I think if you've upset your subject in any way partaking in street/candid photography you're an arsehole).

Being polite is a 2-way street. Being reasonable is also a societal requirement. Being an arse, because you have unreasonable beliefs, is also a 2-way street. If you show me that you're an arse, I'll show you the same.

People get upset, far too often, when it is unreasonable to take offense. That doesn't make me or you the arse. Just because someone takes your photo, doesn't remove your social obligations, nor does it give you license to be an arse.

I've had numerous chats involving people, both subjects and observers, of my street photography. I've never had anyone ask or demand that I delete my photos. I've never had anyone ask that I not take their photo, once they realized that they were the subject.

I have had people verbally object to having their photo taken and a couple of them even threatened violence. In all of those cases, they were not the subjects of my photos. They had simply seen my lens pointed in their general direction. In all of those cases, they thought they would intimidate me and make me do something I didn't want to do. I thought that was unreasonable and rejected their nonsense completely.

I've had many other examples where people have asked me why I had taken their photo, after the fact. Once I explained my motive, each of them were satisfied and it was never an issue.

I see a ton of hypocrisy in this area. Most of these people have double standards, one set for them and one set for you. That, IMO, is being an arse, to the Xtreme.

[Onyx]

A New York psychologist experimented with a group of 50 people, all of whom had witnessed a murder. The result was that there were 50 totally different views of what had happened - and this is exactly how the law is perceived - everyone has a different perception of how a particular law applies. Generally one in fifty is correct

That was no experiment... in the real life case of Kitty Geneviese, she yelled for help during her murder in Central Park in the late 60s. 30 minutes of screaming, 200 witnesses from an apartment block later recalled hearing those screams for help, 0 person dialled 911 on her behalf. It's saddening and shocking, that's why I hate people...

Scott - t'was UN nightclub in Oxford St: unsydney.com (they have specific notice at entrance stating being photographed was to be expected, if you don't agree leave the premises), on the night of I guess a private function (FBI school of design fashion exhibition & afterparty). Lots of hawt model-types posed for Wendell - he should post some shots once he gets back from France.

Kerry - I guess those cases which you've personally experienced were as a result of a misunderstanding. Compounded with the current state of paranoia in the general population, it's bound rub the wrong way. Alot of 'road rage' incidents IMO are the result of similar misunderstandings. Some people just can't express emotion in a socially acceptable manner (lack of training/parental guidance?! that's another theory of mine).

[KerryPierce]

Kerry - I guess those cases which you've personally experienced were as a result of a misunderstanding. Compounded with the current state of paranoia in the general population, it's bound rub the wrong way. Alot of 'road rage' incidents IMO are the result of similar misunderstandings. Some people just can't express emotion in a socially acceptable manner (lack of training/parental guidance?! that's another theory of mine).

Misunderstanding is usually the common theme for many disputes. In the negative examples I've had, it wasn't so much misunderstanding as it was the law of the street, at its most raw state. In any group of people, there will inevitably be a person that will at least attempt to dominate others, if not the entire group. It is the establishment of the pecking order, natural to any social animal. In the cases I cited, these guys were very overt and hasty, in their attempt to establish domination over the "stranger" in their midst.

Your theory is valid, for much of the social ills today. The world of self seems to be far more important than it used to be.

Curiously, in these many discussions around this central issue of street photography, I don't recall having seen anyone offer an explanation as to why someone might be unhappy with having their photo taken.

There are quite a number of complex, but incidental reasons, such as vanity or timidity, but I think the core issue is really much more simple.

When you take a photo of someone, you've singled them out for special attention. Special attention, when not solicited, will usually make the person uncomfortable.

It's nothing new, you could achieve the same results simply by staring at someone intensely. Nonverbal communication.