Consent issue

[ShavedMonkey]

This past weekend I went to Great Falls in VA to take some pics of the falls. There was a kayaker in the water and I got some great shots of him. I was up at the top of the falls with a zoom lens so obviously I wasn't anywhere near him. There was no way for me to get any sort of consent from him. Does this mean I can't post these pics anywhere?

 

[LaFoto]

Many people just WOULD...
And if I understand your American Laws right (from other Americans speaking on the matter here on TPF, that is, that is my only source), you may take and also SHOW photos of persons who were out in public places. The only thing you must not do is commercialise these photos, like sell them to a company who would use them for something (advertisement?), or ... well, sell them at all, as I understand it.

Our German laws are stricter, and it is said that once the person is clearly to be recognised, his photo must not be shown around or made public (in all the meanings of the word), unless he has given you consent. Which was all impossible for you to obtain, as I understand. In Germany, only photos of people taken during Festivals of any kind and in the broadest sense may be taken AND published - for anyone who goes to attend such festivals seems to inherently agree with the fact that many photographers will be around and they will be unable to avoid getting into their photos.

But you are in America.
So I believe that you have the right to at least show us here on TPF what and WHO you phtoographed last weekend at the Great Falls.

 

[skieur]

The kayaker was in a public place, so you certainly can post them. What you cannot do without his consent is to for example use the photo to advertise a sports outlet. I should also indicate the difference in law between commercialization and advertising. You can sell a photo taken in a public place for money,...but not for the purpose of advertising a product.

skieur

 

[Big Mike]

I think it also depends on whether or not the person is recognizable in the photo. If they are not recognizable, I doubt that they would have any legal rights to prevent you from using the image for any purpose including advertising.

As mentioned, if they are in public, it's OK to shoot and most likely OK to use the images for non commercial purposes. As long as there were not in a position to have a 'reasonable expectation of privacy'.

As always, this is a legal matter, so consulting an actual lawyer would be the best thing to do.

 

[nossie]

I wonder is there a market possibility there... You take a lot of pictures of of a lot of different model faces from a lot of different angles for the sole purpose of cloning onto images like this.

 

[explody pup]

In 2006, a New York trial court issued a ruling in a case involving Philip-Lorca diCorcia, who had set up elaborate strobe rigs on a New York City street corner and had photographed people walking down the street, including Emo Nussenzweig, an Orthodox Jew who objected on religious grounds to deCorcia's publishing in an artistic exhibition a photograph taken of him without his permission. The photo's subject argued that his privacy and religious rights had been violated by both the taking and publishing of the photograph of him. The judge dismissed the lawsuit, finding that the photograph taken of Nussenzweig on a street is art - not commerce - and therefore is protected by the First Amendment.

Manhattan state Supreme Court Justice Judith J. Gische ruled that the photo of Nussenzweig--a head shot showing him sporting a scraggly white beard, a black hat and a black coat--was art, even though the photographer sold 10 prints of it at $20,000 to $30,000 each. The judge ruled that New York courts have "recognized that art can be sold, at least in limited editions, and still retain its artistic character. . . . First Amendment protection of art is not limited to only starving artists. A profit motive in itself does not necessarily compel a conclusion that art has been used for trade purposes." See Nussenzweig v. diCorcia. Judge Gische's ruling was appealed by Mr. Nussenzweig.

The above is from a Wikipedia article on street photography. It's not exactly legal reference, but it's somewhere to start. If the above is true, you can use any image captured in a public space in any non-commercial capacity. As long as you can successfully argue it's "art", and not "commerce", then you're protected under the 1st Amendment. This would be the case for your kayaker if he was in public space when his image was captured.

 

[ShavedMonkey]

Thanks for all the advice

 

[TCimages]

Hello, I have many shots from there. My rule of thumb is almost always this, If you can easily identify the subject in the image, then it would be best to ask if its ok to post. But on puplic property, you have the right.

You have some really nice images in your gallery!

 

[skieur]

Many people just WOULD...
And if I understand your American Laws right (from other Americans speaking on the matter here on TPF, that is, that is my only source), you may take and also SHOW photos of persons who were out in public places. The only thing you must not do is commercialise these photos, like sell them to a company who would use them for something (advertisement?), or ... well, sell them at all, as I understand it.

Our German laws are stricter, and it is said that once the person is clearly to be recognised, his photo must not be shown around or made public (in all the meanings of the word), unless he has given you consent. Which was all impossible for you to obtain, as I understand. In Germany, only photos of people taken during Festivals of any kind and in the broadest sense may be taken AND published - for anyone who goes to attend such festivals seems to inherently agree with the fact that many photographers will be around and they will be unable to avoid getting into their photos.

But you are in America.
So I believe that you have the right to at least show us here on TPF what and WHO you phtoographed last weekend at the Great Falls.

This is not how I read German case law. The issue was shots of Princess Caroline of Monaco and her kids in public locations in Germany without consent. The German court ruled that the children had a valid expectation of privacy from photographers despite being in a public place but that Princess Caroline as a public figure did not.

It should be noted that this ruling dealt with the paparazzi and taking photos of celebrities in public places going about their daily lives. It did not restrict street photography of average citizens who would not be the subject of the "papazzi" and not constantly harassed by multiple photographers. It also did not restrict photojournalists from taking newsworthy photos of celebrities in public places without permission.

Princess Caroline then appealed to the European Court of Human Rights based on the Charter. The issue was section 8 dealing with privacy versus section 10 dealing with the rights of self-expression using the media: photography, television, etc. The court ruled that Germany had errored on the side of section 10 and that Princess Caroline had a valid expectation of privacy if she was not engaging in any newsworthy activity. However this European Court ruling does not over-rule or change the court decision by Germany.

It should be again noted that there is an obvious difference between celebrities particularly in Europe being constantly followed around by multiple photographers and photos being taken of mundane activities such as shopping or sightseeing and the experience of the average citizen in a tourist area having his/her photo taken. The court rulings related to the former and in my understanding had nothing to do with the latter.

skieur

 

[skieur]

The above is from a Wikipedia article on street photography. It's not exactly legal reference, but it's somewhere to start. If the above is true, you can use any image captured in a public space in any non-commercial capacity. As long as you can successfully argue it's "art", and not "commerce", then you're protected under the 1st Amendment. This would be the case for your kayaker if he was in public space when his image was captured. quoted from Explody Pup

The issue is NOT "art" or "commerce" in law. The issue is any other use including for money vs "advertising". The difference in law is that in using the photo for "advertising" the photographer has "changed the content" of the photo. The difference for example between a use that suggests that a woman is just a passerby(legitimate whether for money or not) and one that indicates that she uses a particular brand of beauty products. (advertising and requiring consent since that is not necessarily accurate).

skieur