Law regarding photographing people (right of image) in France

[Alan Edward Klein]

If you lived in France, people in the photo could probably sue you. Since you're an American living in the US, there's basically nothing they can do. French courts have no jurisdiction here and they can't sue you in US courts because our laws protect the right of photographers to publish photos of people without permission if the photos are for personal expression/art, or for editorial/journalism purposes.

There go my plans to return to Paris.

 

[Alan Edward Klein]

Won't dive too deep into this because it would take us into political grounds, but there is an inherent conflict between the concepts of free speech (a domain to which artistic expression belongs) and of individual rights that creates many legal conundrums in countries which have both written in their constitution some way or another. History shows they are not always compatible.

In America at least, it's the US Constitution and Congress that rules. It's not a matter of individual rights or of free speech that rules. The constitution provides for patents and copyright protection. So free rights in the Bill of Rights don't have precedence. The Consitution protects patents and copyrights and the Congress writes the rules regarding them.

Under US Constitution Article I, section 8, it reads, “Congress shall have power… to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

 

[Rolleiflexible]

In America at least, it's the US Constitution and Congress that rules. It's not a matter of individual rights or of free speech that rules. The constitution provides for patents and copyright protection. So free rights in the Bill of Rights don't have precedence. The Consitution protects patents and copyrights and the Congress writes the rules regarding them.

Under US Constitution Article I, section 8, it reads, “Congress shall have power… to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Alan, this is a subject that's been beaten to death, on Photrio and elsewhere.

You conflate a number of different legal ideas. Among them:

1. The US Constitution and the Copyright Act ensure that you own the works you create.

2. The First Amendment guarantees your right to speech, within certain defined limits.

3. People have implied rights of privacy under the Fifth and Fourteenth Amendments, notwithstanding the utterer's copyright in his words, or his right to utter them under the First Amendment.

4. People have common-law tort claims for defamation if an utterer's exercise of her First Amendment rights falsely injures them.

5. The Government may seek to enjoin your speech, otherwise protected by the First Amendment, if you try to disclose government secrets.

Art. I, sec. 8 simply confers a property right in the writings and creative works that you publish. It confers no rights to speech.

 

[Alex Benjamin]

In America at least, it's the US Constitution and Congress that rules. It's not a matter of individual rights or of free speech that rules. The constitution provides for patents and copyright protection. So free rights in the Bill of Rights don't have precedence. The Consitution protects patents and copyrights and the Congress writes the rules regarding them.

Under US Constitution Article I, section 8, it reads, “Congress shall have power… to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Alan, this is a subject that's been beaten to death, on Photrio and elsewhere.

You conflate a number of different legal ideas. Among them:

1. The US Constitution and the Copyright Act ensure that you own the works you create.

2. The First Amendment guarantees your right to speech, within certain defined limits.

3. People have implied rights of privacy under the Fifth and Fourteenth Amendments, notwithstanding the utterer's copyright in his words, or his right to utter them under the First Amendment.

4. People have common-law tort claims for defamation if an utterer's exercise of her First Amendment rights falsely injures them.

5. The Government may seek to enjoin your speech, otherwise protected by the First Amendment, if you try to disclose government secrets.

Art. I, sec. 8 simply confers a property right in the writings and creative works that you publish. It confers no rights to speech.

It's soooooooo nice to have a lawyer among us !!!

If I may, I'd like to give that dead horse one last beating. From a both philosophical and cultural point of view, I find it a fascinating subject.

As I said, there is an inherent conflict between freedom of expression — you taking the picture and posting/publishing it — and individual rights — me not wanting you to take and post my picture. Legislators have found different ways to deal with it. In the US, they've tilted the balance towards freedom of expression (1st amendment), leaving out individual rights safe for some specific ones, detailed in the following amendments. One important reason for this (albeit not the only one) was of course the institution of slavery. It's not an accident that the individual right not to be a slave doesn't appear until the 13th amendment, in 1865, after the Civil War. End result is you can take and post my picture and there's nothing I can do about it. Your freedom of expression trumps my individual right not wanting to be shown.

In Canada, as in a few other countries, the legislators have attempted to define a more even balance between freedom of expression and individual freedom. That is why, for example, freedom of speech is much more limited than in the US, specifically, limited by our understanding and views of individual freedom.

I'm not saying one is more perfect than the other — I think the Canadian obligation of consent for photographing people in public is a severe impediment to both freedom of expression and, more importantly, freedom of the press.

This is a subject I've studied extensively but on which I'm no expert, by the way. Feel free to correct me if you have different information. I'm no constitutionalist, I just play one on Photrio.

 

[BrianShaw]

...

2. The First Amendment guarantees your right to speech, within certain defined limits.

...

and a few other things.

 

[Dali]

Honestly, I really don't see what's unclear about the law. It's pretty straightforward:

Not as straightforward as you think. When I read "However, the right to the image is limited by the right to information, on right to freedom of expression and the artistic and cultural freedom.", I find it a bit vague. Who knows what is the right of information, the right of freedom of expression and the artistic and cultural freedom in France, where they start and where they end? Are these rights clearly defined or do they depend themself on other rights?

Wonder why I don't want to go to France...

 

[MattKing]

It is also particularly important to keep in mind that statutory provisions that restrict governmental actions, like the US provisions that have words like "Congress shall make no law that limits.." don't necessarily impose restrictions on individual rights to compensation for damages.
The Aubry decision referenced by Alex is an illustrative example of that - it discusses how a combination of written language in the Quebec Civil code and judicial decisions that serve as at least an advisory precedential role, make it clear that individuals in Quebec have more extensive personal rights in their own image, with respect to how that image is used.
There is no criminal law involved. Essentially, there is property law involved, and photographs can constitute a form of appropriation of a property right which is subject to a claim for compensation.

 

[MattKing]

Not as straightforward as you think. When I read "However, the right to the image is limited by the right to information, on right to freedom of expression and the artistic and cultural freedom.", I find it a bit vague. Who knows what is the right of information, the right of freedom of expression and the artistic and cultural freedom in France, where they start and where they end? Are these rights clearly defined or do they depend themself on other rights?

Wonder why I don't want to go to France...

It is pretty clear that you can't make use of a lot of photographic opportunities, without the subjects of the photographs agreeing.
Just like, in the US, you are not allowed to take and use your neighbour's lawnmower to cut your lawn, unless they agree.
Us photographer's sometimes have trouble realizing that people have an interest in what is done with a photo of them.

 

[MattKing]

A point of interest, in reference to the English translation of the law in France.
In Canada, decisions of the Supreme Court of Canada are by law required to be reported in both official languages, French and English, and both versions hold equal weight. My bilingual friends in the law have told me that it is often the French version that provides the greatest clarity. They tell me that French seems better for legal reasoning. Unfortunately, my French is not up to the task of verifying this.

 

[Alex Benjamin]

Not as straightforward as you think. When I read "However, the right to the image is limited by the right to information, on right to freedom of expression and the artistic and cultural freedom.", I find it a bit vague. Who knows what is the right of information, the right of freedom of expression and the artistic and cultural freedom in France, where they start and where they end? Are these rights clearly defined or do they depend themself on other rights?

Wonder why I don't want to go to France...

If you had checked the website, you would have realized that this is not the text of law but a description of what the law is about.

The legal text is more specific, but to a point. Just as anywhere else: if you think everybody reads the second amendment of the US constitution the same way, you haven't been following. Won't dive more into this because of, well, politics, but I'll just say that if laws were clear — or rather, the concepts that they are trying to legally circumscribe —, you wouldn't need the Supreme court to interpret them.

 

[VinceInMT]

Speaking of restrictions, when I was in the US Army in the early-70s I was stationed in Germany. Due to the nature of my job and my security clearance I was told that I was not allowed to travel to Berlin or anywhere else behind the Iron Curtain while I was over there. That’s was disappointing because American Express ran tours for military folks specifically for people interested in photography that would do something like 3 Soviet cities in 5 days and they were quite inexpensive. However, the unit I was in did have to travel to Crete for an exercise and I was turned loose on the island for about 10 days but told to stay there. I wasn’t going to be $37.50 away from Athens and not go so I snuck off and did. I shot 43 rolls of film during that trip. Of course, I couldn’t show the Athens images around much.

When I became a civilian again I was told that I had a 7-year travel restriction on me and not to leave the country. I did make a few trips to Canada without incident and I think statute of limitations is long expired.

 

[pentaxuser]

A lot might depend on how the law in France would actually operate if you lived there and took photos involving people The thread put me in mind of a Street Festival, called Arts Fresco, that used to take place every Sept in a town in the Midlands of England. It was a marvellous day out with "acts of various kinds" such as juggling on a unicycle. I took photos of this for my own enjoyment but had I placed a picture of the professional unicyclist on a photo-sharing site such as Instagram for others' enjoyment and the whole event had taken in place in France would a litigious unicyclist whom I had not obtained permission from to photograph have had a case in law from which he might have won?

There was also a person who was clearly adult but small sitting in a chimpanzee suit in the square. He/she had taken the time to study the exact movements of a chimp and had I not known any better I'd have sworn it was a real chimp. He/she was there to entertain the kids. some of whom went close and touched the chimp. I recall taking several shots of two or three kids Their reaction to the chimp and expressions on their faces were priceless Had I placed such pictures in the Gallery or been a member of a photographic club and placed such a photo for public display in a club exhibition then it would be a worry that it placed me at the mercy of any litigious parents who were simply in it for the money so to speak or simply were members of the "awkward squad" intent on making a point for no reason other than making a point

pentaxuser

 

[Arthurwg]

Just as a point of interest, French citizens also have an absolute right to having Sundays off. That means that if they work on Sundays they are entitled to extra pay, which in some cases can mean double-time.

 

[Alan Edward Klein]

Alan, this is a subject that's been beaten to death, on Photrio and elsewhere.

You conflate a number of different legal ideas. Among them:

1. The US Constitution and the Copyright Act ensure that you own the works you create.

2. The First Amendment guarantees your right to speech, within certain defined limits.

3. People have implied rights of privacy under the Fifth and Fourteenth Amendments, notwithstanding the utterer's copyright in his words, or his right to utter them under the First Amendment.

4. People have common-law tort claims for defamation if an utterer's exercise of her First Amendment rights falsely injures them.

5. The Government may seek to enjoin your speech, otherwise protected by the First Amendment, if you try to disclose government secrets.

Art. I, sec. 8 simply confers a property right in the writings and creative works that you publish. It confers no rights to speech.

The right of free speech in the US Constitution allows one to publish what they want. However, copyright law in the Constitution and by Congressional legislation limits those rights if your publishing violates the copyright and patent laws. That's the point I was making.

 

[Alan Edward Klein]

If you had checked the website, you would have realized that this is not the text of law but a description of what the law is about.

The legal text is more specific, but to a point. Just as anywhere else: if you think everybody reads the second amendment of the US constitution the same way, you haven't been following. Won't dive more into this because of, well, politics, but I'll just say that if laws were clear — or rather, the concepts that they are trying to legally circumscribe —, you wouldn't need the Supreme court to interpret them.

The US Constitution leaves it up to Congress to make laws and rules about patents and copyrights. It's up to them to clarify them so they're clearly defined. They haven't done that. Many people on both sides of the issue are confused about where the line is drawn. So constant lawsuits are looking for the Supreme Court to define what Congress should do. That's Congress's fault, not the Constitution's.

US Constitution, Article I, section 8, reads, “Congress shall have power… to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

 

[Alan Edward Klein]

Speaking of restrictions, when I was in the US Army in the early-70s I was stationed in Germany. Due to the nature of my job and my security clearance I was told that I was not allowed to travel to Berlin or anywhere else behind the Iron Curtain while I was over there. That’s was disappointing because American Express ran tours for military folks specifically for people interested in photography that would do something like 3 Soviet cities in 5 days and they were quite inexpensive. However, the unit I was in did have to travel to Crete for an exercise and I was turned loose on the island for about 10 days but told to stay there. I wasn’t going to be $37.50 away from Athens and not go so I snuck off and did. I shot 43 rolls of film during that trip. Of course, I couldn’t show the Athens images around much.

When I became a civilian again I was told that I had a 7-year travel restriction on me and not to leave the country. I did make a few trips to Canada without incident and I think statute of limitations is long expired.

I had a Top Secret Crypto equipment clearance in the 1960's when I was in the USAF only to find recently that all the equipment is now shown in Wikipedia. I could keep the manuals in my garage.

 

[Dali]

If you had checked the website, you would have realized that this is not the text of law but a description of what the law is about.

Of course I did, in French and in English. Of course, I understood that it is not the Code Civil, thank you. So, what does this thread try to demonstrate practically speaking (this is what interests most of us here)?

 

[Philippe-Georges]

These pictures where in the spectators could be seen, that were used in the book on the Tour de France for which I committed the photography, took weeks of deliberation, negotiations, going back and forth between the publisher and the editor, and finally I had to do a lot of retouching and altering before these were approved for publication.
It costed me an arm and a leg.

So much that I refused the commission the next year...

When carefully interpretering the legal regulations in France, these pictures could have passed to the publication without all this hassle (it is a large mass happening), but the publishing house wanted to be sure and safe.

Tour De France

 

[chuckroast]

Won't dive too deep into this because it would take us into political grounds, but there is an inherent conflict between the concepts of free speech (a domain to which artistic expression belongs) and of individual rights that creates many legal conundrums in countries which have both written in their constitution some way or another. History shows they are not always compatible.

In the US, at least, "free speech" is very narrowly defined to mean that government cannot interfere with your speech except in very narrow cases like uttering credible threats.

The doctrine of free speech does not apply in the private sphere. For example, an employer may limit what you may- or may not say as a condition of employment and this is entirely legal.

So an artist is certainly free of government censorship, but may legally be prohibited from expressing certain things in non-government contexts or when the object of the art is a private citizen in a private setting.

Even this has some rough edges. Some years ago, a Mapplethorpe exhibition that was funded - in part - by government money ran into a great deal of opposition because of the sexual content of the material. As I recall, some of this was actually removed from the show, but it's been a long time, and I may have that wrong. There was much hollering about censorship at that time.

But in the context we're talking about here, it's murky. In reading these various threads, it seems that placing yourself in a public setting in the US grants implicit consent to use your image, even commercially, if I understand what others have written here.

So the only question is what the boundary between public and private might me. As @MattKing pointed out in the other thread, you can't stand in public place and photograph into a private space like a bedroom. But say I am having a BBQ in my backyard that abuts a public street and thus my guests are in plain view with no reasonable expectation of privacy. Are photographs of said party unencumbered for commercial use? I don't know.

 

[Alex Benjamin]

But say I am having a BBQ in my backyard that abuts a public street and thus my guests are in plain view with no reasonable expectation of privacy. Are photographs of said party unencumbered for commercial use? I don't know.

This doesn't fall under right of image but right of publicity. Different circumstances, different concept:

The right of publicity is an intellectual property right that protects against the misappropriation of a person’s name, likeness, or other indicia of personal identity—such as nickname, pseudonym, voice, signature, likeness, or photograph—for commercial benefit.

Right of Publicity - International Trademark Association

www.inta.org

 

[VinceInMT]

The right of free speech in the US Constitution allows one to publish what they want. However, copyright law in the Constitution and by Congressional legislation limits those rights if your publishing violates the copyright and patent laws. That's the point I was making.

With limits. Libel laws could make one's life messy. Also, let's keep in mind that the First Amendment only applies to the government's restricting our right to free speech. Elsewhere, it doesn't count. Just ask the mods.

 

[Alex Benjamin]

So, what does this thread try to demonstrate practically speaking (this is what interests most of us here)?

Well, this is a photography forum in which many, if not most, members are engaged in the practice of street photography, and this is a thread about legislation regarding street photography in France, but also in different countries. Since many people don't know these laws, often even in their own country, you'd figure the interest is pretty obvious, even if just out of curiosity.

The question of privacy law, or right of image, is also (if not mostly) of interest because it brings up ethical questions, i.e., going, for example, from "Am I allowed to photograph these people/kids I don't know" to "Should I photograph these people/kids I don't know".

Talking about the legal aspect is an important reminder that these laws exist to protect these people's rights. And a reminder to some photographers that it may be important, once in a while, to ask oneself why that should be the case, why that should matter.

So there is nothing to demonstrate, practically speaking, as is always the case when ethical matters are involved — a recent, similar thread about photographing (or not) the homeless has proven this.

There are many photographers, here and elsewhere, who neither care about legal matters and, strangely enough, even less about ethical matters. They are free to ignore this thread (and similar ones) if they see no interest in it.

 

[Alex Benjamin]

As mentioned in another thread, laws in Germany are also very strict

The Right to your Own Image in Germany

Portraits of persons may only be published and circulated with the prior consent of the person depicted – regardless of whether it is a portrait photograph of a single person or a street scene involving several people. Consent is required as soon as the person is recognisable based on the external appearance depicted. The recognisability can be based on realistically visible physical features (face, hair colour or even posture). However, it is also sufficient that conclusions about the identity of the person depicted can be drawn solely from the accompanying caption or from the objects shown in the photo (house, car, accessories, etc.).

See also:

Photography laws in Germany​

 

[TheFlyingCamera]

But in the context we're talking about here, it's murky. In reading these various threads, it seems that placing yourself in a public setting in the US grants implicit consent to use your image, even commercially, if I understand what others have written here.

So the only question is what the boundary between public and private might me. As @MattKing pointed out in the other thread, you can't stand in public place and photograph into a private space like a bedroom. But say I am having a BBQ in my backyard that abuts a public street and thus my guests are in plain view with no reasonable expectation of privacy. Are photographs of said party unencumbered for commercial use? I don't know.

I'll let Sanders chime in to correct me if I'm mis-stating this, but US law still grants you control over your image for commercial usage (i.e. putting your face or likeness in an advertisement for a product, where it could reasonably be presumed by your presence that you are endorsing the product/service). If your likeness is used in an art gallery or other artistic venue (a book of photographs, for example), then your consent is not required to photograph you. There are some obvious exceptions to this - nude photography being one example. You would think that the consent would be implied, because the subject of the photograph is in a studio, taking off their clothes in front of another person who they are aware has a camera pointed at them, but you still need to get written consent and release of use from the model before using the images 100% of the time, in part because there are a fair amount of shady photographers out there who do take photos of naked people and then sell them to pornographic magazines/websites that may well endorse interests that the subject does not want to endorse.

 

[chuckroast]

Just ask the mods.

That made me chuckle ;P