Need Advice - Canadian Law

[BrianShaw]

… or it could be an intentional or unintentional desire to possess what they think they are owed. I had similar experiences many years ago except the change to the agreement was to hand over negatives. It never seemed like they had a need or use for them but they certainly felt they were owed. In one case the “client”, a friend from church, changed the agreement at the end of the party and demanded the exposed film. Tired of that kind of nonsense I gave them a bag of film and they gave me an envelope of money… except it was short by 33%. Rather than discussing I simply vowed to never do photography for other people ever again.

 

[Sirius Glass]

In lots of situations, the answer is yes.
We branched from the same root, but approximately 90 years later - 90 years when there were many fundamental changes and improvements in the British law that both countries started with.
In addition, our law includes more of the influence of the Napoleonic Code - Quebec having more legal influence then Louisiana on the general law.

There is little or no influence of Napoleonic law via Louisiana on US law.

 

[Sirius Glass]

You know whats ironic.

So I used to shoot events for a company I used to work for way back in 2012. I did not have the rights to use it for my own portfolio which is fine.

So I'm getting back into photography and rebuilding my portfolio for events.

So I applied for a volunteer photo shoot for an event this coming Friday. You know what the organizer is doing? They are having all guests sign release forms to allow the photos and video (I'm not offering video) for online use.

The best part is part of my role as a volunteer event photographer the client wants ME to collect the forms from each guest.

I swear clients are so crazy in asking for unrealistic goals for a VOLUNTEER photographer. I stated in my email I would much prefer to focus on shooting your event than collecting release forms.

If I don't get the gig no harm loss.

The last client that wanted a volunteer photographer for a 9 hour event, everything went well during the interview including outlining the delivery time and exactly what they would receive.

What really impressed me this client said I could watermark.

So a few days later the client changed their mind and said I couldn't watermark. Fine. Then she said I must submit ALL of my RAW files including Web ready and high resolution jpgs. Volunteer!!!

I said if they want my RAW files they can pay. I walked away.

Like if someone wants to act as a volunteer photographer, unless your event is extremely unique that it will add to your portfolio, I feel many clients are so clueless as to what a photographer needs.

Eventually I may give up on volunteering as an event photographer because of the lack of professionalism.

Since you were a volunteer and you paid for the film, the copyright belongs to you and the client has no rights of privileges to the photograph other than volunteered by you.

 

[MattKing]

Since you were a volunteer and you paid for the film, the copyright belongs to you and the client has no rights of privileges to the photograph other than volunteered by you.

Th entitlement to copyright issues are somewhat different in Canadian law than they are in US law - particularly when it comes to "commissioned" work.
They actually used to be even more different than they are now.
Always be cautious about applying tests from other jurisdictions!
And of course, the OP isn't using film!

 

[MattKing]

There is little or no influence of Napoleonic law via Louisiana on US law.

Most common law decisions originate out of local issues and local laws. If there is an important principle in US law on rights respecting, for example, Dixieland Jazz or gumbo, there is a high likelihood that it originated from Louisiana, and will have at least been influenced by Louisiana decisions from courts regularly applying Louisiana based experience.
In Canada, a significant percentage of our courts are in Quebec and regularly have to bring Quebec law considerations to the disputes that arise there. The decisions from those lower courts form much of the law, and often end up being adopted by higher courts in their decisions.
Yes, Quebec has more influence on Canadian law in general than Louisiana is likely to have on US law in general, but courts in other jurisdictions are entitled to read and adopt with approval the reasoning from those other courts.
Otherwise, I would never have had the opportunity to learn of the existence of the US appellate justice with what must be the best name ever: Justice Learned Hand!

 

[Craig]

@Photographer_101

On this last point, note that the criminal code (see text below), regarding publication specifically of "Intimate image without consent", defines "Intimate image" as :



Now you'll notice that both (b) and (c) becomes tricky and delicate, since nowhere in the definition does it state that expectation of privacy is limited to private spaces and does not apply to public space.

That portion of the Code that deals in the expectation of privacy would be something like taking photos of people changing in a locker room. Yes, it's a public place, but there is an expectation of privacy in terms of not being photographed. Similarly, if you put a phone over the divider wall and took a photos in a public washroom of a person in the stall next to you that would be covered by the description of an intimate image and would be criminal conduct. That section of the Code isn't meant to capture photos of the general public on the street.

The expectation of privacy is more related to "peeping Tom" type photos, not a person in a public park or walking down the street. If you take a photo of the Great Hall in Union Station and there are people in the photo ( it's a place that is very difficult to photograph without people) there wouldn't be an expectation of privacy in such a place. Nor is it very likely you be able to generate an "intimate image" in that place.

 

[geirtbr]

@Alex Benjamin Thank you for interesting reference. There are similar distinctions made in norwegian law, as far as I know, but jurisprudence here is very limited. It is, from what I know, almost exclusively cases of paparazzi-photography of royals or celebrities. I found a source on the quebec-case you mentioned as well, with a replica of the image in question. From what I understand the publication was a small journal with a very limited print, but the person in question was a celebrity (?). One of the more well known cases in the courts here was paparazzi-photos from a private wedding in 2005 ceremony of a celebrity-couple, a musician and an actress. It was published in a celebrity magazine with a wide circulation. They mounted a lawsuit and won in the two lower courts, but in an appeal to the supreme court they narrowly lost on a 3-2 desicion. In an appeal to ECHR in Strasbourg they lost again, the court weighting the concerns of freedom of expression stronger.
I believe in my country the context of publication would be very relevant, instagram, for example, could be argued to be within the private realm. If one shows the work in an art gallery, for example, one could argue it pertains to artistic freedom. There are several local street photographers who does this, but they are not well known and i presume the exhibitions normally goes under the radar. I have never heard of jurisprudence in relation to such works. If I did an exhibition of street photography myself, and a subjekt complained about his or her picture being there, I would apoligize and remove it from display, I would think that would help legally as well.



ref:

Le droit à l’image en documentaire: entre respect du sujet et intérêt public | Fonds des médias du Canada

Est-ce que le droit à l’image suscite des enjeux particuliers dans le monde du documentaire? Comment le contexte a-t-il évolué…

cmf-fmc.ca

ECHR judgement 2014 wedding photos paparazzi case:

HUDOC - European Court of Human Rights

The HUDOC database provides access to the case-law of the Court (Grand Chamber, Chamber and Committee judgments and decisions, communicated cases, advisory opinions and legal summaries from the Case-Law Information Note), the European Commission of Human Rights (decisions and reports) and the...

hudoc.echr.coe.int

 

[Alex Benjamin]

That portion of the Code that deals in the expectation of privacy would be something like taking photos of people changing in a locker room. Yes, it's a public place, but there is an expectation of privacy in terms of not being photographed. Similarly, if you put a phone over the divider wall and took a photos in a public washroom of a person in the stall next to you that would be covered by the description of an intimate image and would be criminal conduct. That section of the Code isn't meant to capture photos of the general public on the street.

I think the reason why places where there should be "expectation of privacy" are not mentioned is because the legislators understood that the concept itself wasn't clear cut and needed to be open enough to allow contextualizing.

Take the example of a homeless person sleeping half naked on the street or on a park bench or, as we see more and more, is eating a sandwich beside a tent in that park. Clearly this is no locker room. We're in a public space. But this person doesn't have a home, doesn't have a private space. The street is his or her home. You photograph this person without their consent. Couldn't they argue that they had an expectation of privacy?

I don't know what a judge's answer would be to that, but that precisely the point.

 

[geirtbr]

@Alex Benjamin Its most likely a hypothetical question, since this group of people wont have the resources to bring cases through courts. Hence this is also a reason why most jurisprudence deals with celebrities. Many street photographers seems to be drawn to peoples of the lower social classes, I presume it is because both because their lives are more visible in public spaces, and also because they dont have much resources to oppose being photographed. With well off middle class in suburbs its a different story.

 

[Saganich]

The risk of be yelled at is way greater than the risk to be sued.

LOL or worse, I've been threatened several times by concerned citizens, questioned by police, and have had to protect myself from harm, and in the orthodox communities, where I live, unmarked security tail me...but that's Brooklyn on a normal day.

 

[Alan Edward Klein]

I'm curious in America how the US constitutional rights that give freedom of the press and freedom of speech might affect news photographer's rights to publish street photographs as news or an individual's right to publish street photographs as part of their rights of free speech, might conflict with individuals rights of privacy? What has the Supreme Court said about this?

 

[koraks]

I'm curious in America how the US constitutional rights

That's:
#1 for another thread and
#2 likely to transgress in territory we don't allow on Photrio.

Let's stay on-topic, which is the question of legal and perhaps ethical issues related to artistic and amateur publishing of street photography.

 

[Alan Edward Klein]

That's:
#1 for another thread and
#2 likely to transgress in territory we don't allow on Photrio.

Let's stay on-topic, which is the question of legal and perhaps ethical issues related to artistic and amateur publishing of street photography.

That is a legal question that goes to the heart of whether you're allowed or not to photograph and publish street pictures. It's not a political issue but legal one. Every law written by the state of Louisiana or another state or by the federal government has to comply with the US Constitution. That's why I raised the issue. For example, a reporter photographing news as a street photograph might have greater rights than an ordinary citizen due to a reporter's protection under the US Constitution's right of freedom of the press. It could be that you'e not familiar with our Constitution and those protections aren't afforded where you live. These Constitutional rights are part of the conversation since they override local customs and local laws.

 

[MattKing]

That is a legal question that goes to the heart of whether you're allowed or not to photograph and publish street pictures. It's not a political issue but legal one. Every law written by the state of Louisiana or another state or by the federal government has to comply with the US Constitution. That's why I raised the issue. For example, a reporter photographing news as a street photograph might have greater rights than an ordinary citizen due to a reporter's protection under the US Constitution's right of freedom of the press. It could be that you'e not familiar with our Constitution and those protections aren't afforded where you live. These Constitutional rights are part of the conversation since they override local customs and local laws.

Wrong country.
Therefore off topic for the thread.

 

[Alex Benjamin]

Its most likely a hypothetical question, since this group of people wont have the resources to bring cases through courts.

Whether or not you're doing something illegal does not depend on the capacity of the victim to bring you to court.

Also, to state this again, this would not be a civil case — i.e., the victim suing you. It would be a criminal case — i.e., the Crown would take you to court.

Should add, regarding my example, that beyond the criminal matter, there's the ethical matter. When photographing a homeless person sleeping on the sidewalk, there are two ways to translate the question "Does this person have expectation of privacy?", and they are (1) "Am I doing something criminal?" or (2) "Am I doing something unethical?".

I found a source on the quebec-case you mentioned as well, with a replica of the image in question. From what I understand the publication was a small journal with a very limited print, but the person in question was a celebrity (?).

To answer your question, no, she wasn't. Pascale Claude Aubry was just a young woman sitting outside on St-Catherine Street in Montreal. She, or at least her name, became famous after this.

 

[Alex Benjamin]

Sometimes ethical guidelines can be quite simple to figure out ...

 

[CMoore]

Sometimes ethical guidelines can be quite simple to figure out ...

View attachment 400205

Nobody Is/Was a saint, including Gordon Parks.
Maybe he was wrong or right for taking or not taking picture XYZ.

FWIW, GP is one of my all time favorites.
He deserves our highest respect for helping to save that kid from ....... Central America.?

How about people just think for themselves..........

 

[MattKing]

Also, to state this again, this would not be a civil case — i.e., the victim suing you. It would be a criminal case — i.e., the Crown would take you to court.

At the risk of pedantry, such a case would not be criminal in nature - in Canada, to be a breach of Criminal law, it would need to be a breach of the federal Criminal Code.
It would be the provincial Crown taking you to court, and the nature of the proceeding would likely depend on the description of the "offense" provisions in the statute - which I haven't delved deeply into.
It could range from everything between the lowest level of regulatory enforcement - think a speeding ticket - to the most serious, nearly criminal law provisions.
I would expect though that the provisions would be more oriented toward recompense and preventative remedies than the criminal law.

 

[Alex Benjamin]

How about people just think for themselves..........

How about people having a sense of humour and realizing this was just a joke?

 

[Alex Benjamin]

At the risk of pedantry, such a case would not be criminal in nature - in Canada, to be a breach of Criminal law, it would need to be a breach of the federal Criminal Code.
It would be the provincial Crown taking you to court, and the nature of the proceeding would likely depend on the description of the "offense" provisions in the statute - which I haven't delved deeply into.
It could range from everything between the lowest level of regulatory enforcement - think a speeding ticket - to the most serious, nearly criminal law provisions.
I would expect though that the provisions would be more oriented toward recompense and preventative remedies than the criminal law.

Thanks for the clarification, Matt.

 

[Craig]

. We're in a public space. But this person doesn't have a home, doesn't have a private space. The street is his or her home. You photograph this person without their consent. Couldn't they argue that they had an expectation of privacy?

I don't know what a judge's answer would be to that, but that precisely the point.

Only if you take an intimate image of the homeless person would there be an expectation of privacy. Other things might come into play though, such as public nudity/indecent exposure is an offense, the reason for making the photograph would matter. News reportage, for example, would be a legitimate reason to take a photograph of someone committing an offense.

A non-intimate image doesn't have the same expectation of privacy.

 

[Dali]

Any advice is appreciated.

Ask a lawyer and move on.

 

[Don_ih]

Take the example of a homeless person sleeping half naked on the street or on a park bench or, as we see more and more, is eating a sandwich beside a tent in that park. Clearly this is no locker room. We're in a public space. But this person doesn't have a home, doesn't have a private space. The street is his or her home. You photograph this person without their consent. Couldn't they argue that they had an expectation of privacy?

No. The street cannot be someone's home. If you were to invade his/her cardboard box, that would count as a private space. The cardboard box is that person's factual home, even if it is not conceivably a rightful home. Even without property or any rights whatsoever, that would function as a private space. You have zero expectation of privacy out in the open.

 

[Alex Benjamin]

No. The street cannot be someone's home. If you were to invade his/her cardboard box, that would count as a private space. The cardboard box is that person's factual home, even if it is not conceivably a rightful home. Even without property or any rights whatsoever, that would function as a private space. You have zero expectation of privacy out in the open.

I respect that answer.

Me, honestly, I just don't know for sure, but I am leaning in the other direction.

 

[Don_ih]

I am leaning in the other direction

It's a matter or respect and decency to let homeless people exist without doing what you consider to be infringing on their rights. The law doesn't spell out what is the proper moral course of action. So, you see a homeless person sleeping on a park bench - leave him or her alone, don't take a photo, respect their need to exist somewhere. But it's not spelled out in law.