Need some clarification...

[bdavis]

I took a day off from work tomorrow to go around shooting in the city. My main areas I want to focus on are architecture and people. I know this has been discussed many times, but I've never received a clear answer:

It I take photos of someone that are good can I put them on my online portfolio or sell prints without a release?

I know many people say that it's the first amendment and they can't expect to have privacy since they are walking around in public, but I'm just curious. I know you need a release if you are using them commercially like advertisements or with products, but does selling them as art count?

 

[maulrat]

Sounds like paparazzi photos as seen in Star magazine, etc. I would say that you don't need permission but it would be considerate if you would. Sometimes, you may take photos of people around the city streets then process it months later. It would be quite difficult to get their consent to sell the photo unless you went around to everyone in the area you photographed and made them sign some crazy document allowing you to sell photographs of them... yeah, like that's gonna happen

 

[rufus5150]

Disclaimer ... I am not a lawyer and this does not constitute legal advice.

You have 2 questions:

Can I sell the photos as art? Can I put them in my online portfolio? There may be some overlap, it might be all overlap, but I think they can be and need to be addressed separately.

In the US, selling pictures of people as art is legal. They have no claim to privacy if they're in public space, out in the open, or any reasonable claim to privacy if they're on private properly that is viewable from public spaces (such as in the outdoor seating area of a Starbucks, etc).

Sometimes it could be downright impossible to get, and artistically, you're can be putting yourself at a disadvantage if you get permission beforehand. People go from being people to being models at that point. Sorry about the tangent!

I would, however, recommend as courtesy to avoid shots of children without the permission of parents. Legality aside, parents can be scary if they think their child is in danger. Less a legal and more of a self-preservation response, though.

But I, too, have been curious as to the whether a portfolio (which for many is an advertisement of their own business) is considered use as an advertisement. I'm not talking a portfolio of 'I have this for sale', but 'hire me based on my work, this isn't for sale, though'. I've yet to find a definitive answer.

Once you do have a satisfactory answer here, make sure you at least brush up a little on local ordinances, county and state laws as well. It's good to at least know what you're dealing with in case you do find yourself on the wrong end of uncomfortable questions.

 

[bdavis]

Thanks for the help. I'm getting confused because I hear both sides and it's hard to know which one to listen to.

I've seen places on the web that say:

"If they are out in public, they have no expectation of privacy."
"You can take a picture without a release and sell it as art."
"Selling as art, technically qualifies as 'commercial use' therefore a release is needed."

There doesn't seem to be a clear answer. Can some of the senior members or pros comment on this topic?

 

[maulrat]

I would, however, recommend as courtesy to avoid shots of children without the permission of parents. Legality aside, parents can be scary if they think their child is in danger. Less a legal and more of a self-preservation response, though.

This can be a very serious matter. When asking permission to take photos of children in public, it would be a good idea to have a business card handy. This way the parents can feel a little safer about you being a legit photographer. Also provide them with access to your gallery or email so that you can give them copies of their child's photos.

Another thing to be careful of is shooting in malls; indoor and outdoor. I was kicked out of an outdoor mall once because I was taking random photographs. Security seems to not give a damn if 20 people walk through the mall with camera phones and P&Ss but once you break out an SLR, your done for. I was testing out a camera accessory that I purchesed from the mall and the mall security was quick to give me the boot.:x

 

[rufus5150]

"Selling as art, technically qualifies as 'commercial use' therefore a release is needed."

The key here is not 'commercial' but 'endorsement'. Where you get into trouble is when you use someone's image to endorse a product or business (which is where my confusion about the portfolio comes from).

 

[rufus5150]

This can be a very serious matter. When asking permission to take photos of children in public, it would be a good idea to have a business card handy. This way the parents can feel a little safer about you being a legit photographer. Also provide them with access to your gallery or email so that you can give them copies of their child's photos.

It's sad it's come to this. (Tangent, this deserves it's own thread someday, I think.)

 

[bdavis]

Actually I think I have seen a thread on that...or one turned into that topic.

Anyways I found some information about some judges rulings on a previous occurrence of this: Street photography - Wikipedia, the free encyclopedia

In the Legal Considerations section it says:

"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."

"That profit may be derived from the sale of art does not diminish the constitutional protection afforded"

"The public expression of those ideas and concepts is fully protected by the First Amendment, irrespective of whether an artist or speaker derives income from such expression"


To me this says that I have a right to take photos of people in public areas and sell them as art should I desire to do so.

 

[rufus5150]

Here's a good link:

Bert P. Krages Attorney at Law Photographer's Rights Page

It still doesn't answer the 'portfolio' question, though.

 

[bdavis]

Doesn't really answer the selling photos question either, but I did find it very informative about my rights and where/what I can take pictures of. Good find! At least now I know what to do if someone harasses me.