Should I try to contact the subject

McShaman · Jun 6, 2013

I took a shot at a bar the other night:Order up | Flickr - Photo Sharing!

I like the photo and have uploaded it to my Flickr and DeviantART profile and my upload it to others. I think the woman in the shot is a waitress. I don't plan on selling the photo... However I was wondering, am I obliged to try and contact the subject and ask her permission to use it?

What is the opinion of the photographic community?

Should I do it just out of courtesy?

tirediron · Jun 6, 2013

I have no idea what the legal aspects of this are in Australia, but in my mind courtesy dictates that a "Hey, I was in the other night and took this photo that I thought was rather good, would you like a copy?" is in order.

Gavjenks · Jun 6, 2013

Also don't know about Australia, but in the United States, you can publish it wherever you want as long as the waitress wasn't either:

A) doing anything where she had a reasonable expectation of privacy (like entering a PIN into an ATM machine, or huddling over a piece of paper to try and hide it from others), or
B) In a position where the photograph may UNJUSTLY generate embarrassment, harm, liability, etc. If a person is legitimately patronizing a strip club and you take a photo of them walking out the door, that is NOT defamation of character, because they were actually there and using it for its intended purpose. Doesn't matter if they are the mayor and the principle of an elementary school and it ruins their life: if it's not misleading, it's still okay (in fact, if they are the mayor or principal, you're actually probably MORE protected legally, because that is very newsworthy, and more obviously an editorial photo, which is protected!). It's not portraying them in a false light. However, if the strip club shares a front door with a starbucks, and they were actually just getting coffee, then the image might falsely imply that they visit strip clubs, and thus could be defamation of character, even if they have no quantifiable $$ damages.

AND

as long as you aren't making any money off of it (with some exceptions for if you are selling it to a newspaper as a newsworthy photo)

In your case, it seems clear that you don't plan on making any money from it, and the waitress was probably just standing there, with no expectation of privacy, and no even remote risk of defamation of character, so in the United States, you'd be free and clear.

texkam · Jun 7, 2013

If you were shooting on private property without permission, you may have a problem, for the owner may want to provide an expectation of privacy for his/her employees. You need to be up-front with the owner and employee. Yes ask for permission, not only from the employee, but from her employer as well, for you are on and shooting their employees and property.

Gavjenks · Jun 7, 2013

4020 Φ NSW Photographer's Rights
^
overview of Australian photography law

I'm not going to go read some 80 page document about a place I don't live, so I'll leave that up to the OP. But in the United States again, customers and employees in a restaurant that is open to the public (as in you don't have to be invited) do NOT afford an expectation of privacy merely for being in it.

It does not matter if the owner of the restaurant happens to want his employees to have an expectation of privacy. It's not an opinion-based thing. It's based on what the general public can see, and if you invite the public in, then that means they can see everything in the main rooms of the restaurant, so you have no such expectation. (unless they're in a bathroom stall or a break room or some place where you actually could reasonably expect to be private from random patrons' eyeballs).

If the restaurant owner doesn't like it, then he is free to make his restaurant no longer open to the public. For instance a big sign that says "nobody with a camera is allowed in this restaurant" and then if people take pictures (or are even caught with a camera) there he could sue them for trespassing. But if you are invited in, then you are free to photograph anything you can see with your eyes.

Of course, that would have the tiny little downside of nobody ever eating there ever again, since 99% of people have cameras in their pockets on cell phones...

Buckster · Jun 7, 2013

I don't know the laws concerning such things in Australia, but from an American perspective, I would say you're not obligated and I wouldn't ask permission of anyone to use it, because that makes them think they have a choice. Here in the United States, they don't (though most publishers probably wouldn't use it without a model release). Again, you'd have to check and see what Australian law has to say about such things.

That said, I think it's a really great photo, and I'd make copies for both people in it, as well as the owner of the establishment and give those copies to them as a friendly gesture. That opens the door to a friendly conversation with them, which can then lead to the idea that, while I have no plans to use it for anything but my personal portfolio, I'd like a model release from them, just in case something came up some day where I might need that in order to publish it somewhere someday.

The owner of the place may even find that it could be used for advertising for his place, and be willing to negotiate a licensing fee with you to use it, or to hire you to shoot other photos of his place that he could use for that purpose. You never know unless you try.

KmH · Jun 7, 2013

Gavjenks said:
as long as you aren't making any money off of it (with some exceptions for if you are selling it to a newspaper as a newsworthy photo)

http://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia

Model/Property release law is not as cut and dried as laws like traffic laws, and here in the USA model release law is state law, so there are 50 somewhat different versions. Those that rely on generic, online model releases or mobile device app model/property releases should make sure those are in fact valid in their state.

The key is how the image is used. There are 2 types of use; Editorial and Commercial.
Using an image to accompany a related newspaper story or magazine article is an editorial use, and a model release is not needed.
Using the same image in a advertisement in a newspaper/magazine would be a commercial use, and having a model release on file is advisable.

You can indeed make money off a photo with people in it, without permission from those people in the photo. You can sell the photo(s) to anyone willing to pay for them. Once sold, the photographer no longer has any control over how the image is used by whomever bought it.
A valid model release is recommended for anyone that publishes the image for a commercial purpose. However, selling or publishing photos for non-commercial purposes does not require having a release.

Note: The photographer could also be a publisher of the image, and in some circumstances photographers are allowed to self-publish people shots for self-promotion without a model release. Images made by the photographer in private, like in a studio, under controlled conditions, like an on-location shoot in a public area using supplemental lighting, or images where the people in the photo(s) could be perceived as sponsors or advocates of the photographers business should be released.

A Digital Photographer's Guide to Model Releases: Making the Best Business Decisions with Your Photos of People, Places and Things

A restaurant owner or any other private property owner can prohibit photographers from making photographs while on the property.
However once made, the property owner has no way to make the photographer destroy the image(s) made.
The property owner can however demand the photographer leave the property, or be subject to arrest for trespassing.

frommrstomommy · Jun 7, 2013

tirediron said:
I have no idea what the legal aspects of this are in Australia, but in my mind courtesy dictates that a "Hey, I was in the other night and took this photo that I thought was rather good, would you like a copy?" is in order.

completely agree.. i took some at a homecoming n after the event located them and got their emails/introduced myself and offered to email them.

kathyt · Jun 7, 2013

I wouldn't, but that is just me. If I were to sell the image that would be another story. I like the image by the way. If I had to contact people everytime they showed up in one of my images I would never get off the phone.

Tiller · Jun 7, 2013

Not unless you're going to do the same for the guy in the back cooking. Public place, I wouldn't worry about unless it because world famous, then I might offer her a print or something like that.