Need Advice - Canadian Law

[Photographer_101]

Hi all.

This is my first time posting here and need some advice. I live in downtown Toronto, ON, Canada.

I just got a new Fuji X-T5 about a week ago. I purchased a used Fuji 18-55mm lens.

I have done extensive research on what lens to purchase next. I shot some tests today. I am looking into exploring street photography. Originally my next lens I was going to buy was a Fuji 35mm f2 but I am having second thoughts. I currently take all sorts of types of photography, I used to love landscape style photography but I want to explore the possibility of street photography.

The laws in Canada, for shooting people in public, and either using their likeness on a website, online portfolio, in print, and/or if down the line I wish to publish a photo book of street photography portraits I am rethinking a 35mm.

If one uses a 18mm f1.4 a shot of a person across a street but you cannot clearly make out the person's face, do you think this is safer to use in a professional setting with low chances of getting sued? I understand if I paid someone on the street a small fee and had them sign a contract so I can use their likeness, I know the risk is low, and I know legally you can take someone's photo in a public place but you cannot publish the photo without consent right?

I mean, I took some photos today, high angles looking down so the face is not seen, but doing all high angles looking down is going to get boring very fast for most viewers.

The other lens I really want to get is the 75mm f1.4 from Viltrox, but again, I feel like I need to be careful shooting people in public without their permission.

Am I being too paranoid? I just don't want to take an amazing photo of someone, like a portrait, but have to risk getting sued in Canada if I ever decide to publish such a photo, either online, or as a print or later in life in a photo book.

Any advice is appreciated.

Thanks!

 

[BrianShaw]

Welcome to Photrio. I haven’t been Canadian for 2 generations so can’t help you with your question. There are a number of Canadian members so Im sure you’ll get good input.

 

[mshchem]

Welcome to Photrio!!!

 

[koraks]

Moderator note: I've moved this thread to its present location; while the question is formulated in legal terms, it borders on ethical considerations as well - and in the present location, it's a little more likely to be picked up by people who may have relevant input.

Am I being too paranoid?

I suspect so, yes. I suspect that in your particular case, your work would qualify as art and as such the rights of those in the picture would not be as strict/limiting to the sale of your work as they would be if you were, for instance, shooting an advertisement for a product/brand. AFAIK in the US this distinction (between art and commercial work) is made, and I suspect similar distinctions are made in virtually all places that have comparable portrait and privacy legislation.
Since it's probably going to be a bit of a grey area on the nexus of potentially conflicting interests (as protected/codified in legislation), there's probably still the (hypothetical) chance that someone who recognizes themselves in one of your photo would want to test the case in court - i.e. sue you. How likely this is to happen would depend on how widely your work will be distributed and of course the way people are pictured. Overall, I'd say that realistically speaking, the odds are so small as to approximate zero - but they will never be entirely zero, of course.

This is from a layman's and non-Canadian perspective, so please bear this in mind.

PS: I don't think lenses have much to do with this; it's about how recognizable people are, in what kind of context/setting they're photographed, whether they're likely to take offense and whether they're likely to find out they're in the picture to begin with.

 

[joho]

Your photo is probably on a photographer's Instagram and there's nothing you can do about it

In Canada it's legal to take pictures of anyone if the photographer is on public property.

theplaidzebra.com

hope this gives some idea.
In general for street photos in public space in europe more than 5 people no problem - should apply ????
but on the lighter side with Canada the objects in the photo do not have to be people, they [you] could say they identify as chickens - cats - termites ....[joke]

 

[Don_ih]

You don't need to give anyone anything or get them to sign anything if you are taking photos for artistic or other non-commercial uses, if those people are visible in public. If you intend to make a photo book, that counts as an artistic use. You can't upload those photos to a stock photography site or use them in advertising (other than in something like promotional material for a gallery show).

In Canada, if you can see it in public, you can photograph it.

Since it's probably going to be a bit of a grey area on the nexus of potentially conflicting interests (as protected/codified in legislation), there's probably still the (hypothetical) chance that someone who recognizes themselves in one of your photo would want to test the case in court - i.e. sue you.

Suing someone in Canada for something like that would cost a lot. You'd also probably lose. If you won, you'd probably get awarded nothing.

 

[koraks]

Suing someone in Canada for something like that would cost a lot. You'd also probably lose. If you won, you'd probably get awarded nothing.

Indeed, this adds to the unlikelihood of this happening. I'd really not worry about it.

 

[Photographer_101]

Thank you all for your input. It really helped!!!

 

[Dali]

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

 

[Alex Benjamin]

@Photographer_101

First advice is never ask questions regarding right to image on a photography forum because chances are the majority of photographers will tell you you can do whatever you want to do . In the rock-paper-scissors game of taking the photo vs ethics vs the law, it's pretty easy to figure out what usually trumps what in our photographically-geared minds.

Second advice is since this right of image is not a photography matter but a legal matter, do check what the law says.

Third advice is once you get to the law, note carefully the difference between taking a photo of someone without his or her permission (hint: you can) and publishing a photo without his or her permission (hint: in some cases you can, in others you can't).

Fourth advice is check where the law you're looking at applies. Because of the Aubry Judgement, in Quebec, it is generally (there are conditions) not legal to publish a photograph of someone without their permission, but I do not know if the Supreme Court's ruling applies elsewhere, or if there are other rulings that apply.

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

a visual recording of a person made by any means including a photographic, film or video recording,

• (a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;
• (b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and
• (c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.

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. As stated in other threads on the same subject, the idea that legally specaking there is no expectation of privacy in a public space is almost limited to the United States. Both Canada and many European states are much more nuanced on the subject.

Unless, of course, it's the state itself filming and thus invading people's privacy in the public space, but that's a matter for a different thread.

Aubry v Éditions Vice-Versa Inc - Wikipedia

en.wikipedia.org

Aubry v. Éditions Vice-Versa inc. - SCC Cases

decisions.scc-csc.ca

Criminal Code

Federal laws of Canada

laws-lois.justice.gc.ca

So, not saying you should, not saying you shouldn't. In the end, mostly comes down to personal ethics — "Should I photograph that homeless person sleeping on the sidewalk" — or aesthetic considerations — "Would a photograph of this lady talking on her iPhone have any artistic merit or be of any interest whatsoever?". Important nevertheless to know what the law actually says, and what it doesn't say.

 

[Photographer_101]

I understand. Thank you Alex for taking the time to reply. I am more concerned if one day a photo I take is famous as a print (you never know) and if that person tries to sue.

For use as a print in a gallery setting not for sale online. Also for use in a photobook for retail and finally, if used as part of my online portfolio but would NOT appear on social media platforms like Instagram...even though I know countless other photographers publish photos of strangers on Instagram and enter them for photo contests.

Overall I'm just trying to be careful in today's world.

 

[MattKing]

Alex has covered it quite well.
The decision in Aubry v Éditions Vice-Versa Inc is dependent on the particularities of Quebec law - in particular to the extra protections granted under the Quebec Civil code to one's "likeness" - so would be mostly inapplicable outside Quebec, but the sentiment is probably important.
Mostly, it probably turns on how you make use of the recognizable likeness.
If it ends up being published in a remunerative ad for condoms, it will be more likely to matter than if it shows up in tourist brochure touting the joys of the lively and safe streets. And if it is shown in an art photography venue, there really isn't any commercial aspect to the use of the likeness.
The other people who might care would be people who have a legitimate interest in anonymity, such as a spouse running away from an abusive partner.

 

[BrianShaw]

… and for the longest I thought Canadians would smile and be agreeable. I guess their just normal people.

 

[Alex Benjamin]

and if that person tries to sue

If the print is hanging on the wall of a museum or posted on the web, the person will only sue if you refuse to take it down or erase it from the web after being asked — usually politely, this is Canada after all — to do so. And even then, if you refuse, the person would probably refer the matter to a legal instance before suing. Not to overly emphasize, if not caricature, the differences between Canadians and Americans, but seems to me that suing as a first course of action is much more frequent with the latter than the former.

Now if the photo is in a book, your life might get a bit more complicated.

Beyond the legal and ethical implications, if you do insist on doing this type of photography, it does become, as others have stated, a question of risk management. I do very little street photography — I photograph the street, which is very different —, but when I do, mostly while outside Canada, I find it an interesting challenge, from a technical and compositional point of view, to leave people' faces, when recognizable, out of it. That said, I've taken photos in Marseille in 2022 in which this is not the case, and have posted them on my social media and here. Should by any chance the persons who are in these photos ask me to take them down, I would without hesitation, even if they live in France and me in Quebec. That's because I tend to agree with the principle of right to image, even if I can understand people who don't.

 

[Alex Benjamin]

The decision in Aubry v Éditions Vice-Versa Inc is dependent on the particularities of Quebec law - in particular to the extra protections granted under the Quebec Civil code to one's "likeness" - so would be mostly inapplicable outside Quebec, but the sentiment is probably important.
Mostly, it probably turns on how you make use of the recognizable likeness.

Should add that in the law the idea of recognizable likeness is somewhat tempered by that of main subject of interest. If I'm taking photos of musicians on stage at an outdoor festival and that they are the main subject of interest of the photo, it doesn't matter if you also see a bunch of recognizable faces in the crowd.

And of course, the musicians performing in public have no expectation of privacy.

This, by the way, is not only for photography but is also relevant in the case of TV news crews.

 

[cowanw]

I understand. Thank you Alex for taking the time to reply. I am more concerned if one day a photo I take is famous as a print (you never know) and if that person tries to sue.

For use as a print in a gallery setting not for sale online. Also for use in a photobook for retail and finally, if used as part of my online portfolio but would NOT appear on social media platforms like Instagram...even though I know countless other photographers publish photos of strangers on Instagram and enter them for photo contests.

Overall I'm just trying to be careful in today's world.

Each of your instances are indeed for commerce. You seem a bit more worried about getting caught, than doing the right thing in the first place. I don't know about Instagram but photo contests all require affirmation of consent these days. Start as you mean to go.

 

[BrianShaw]

@Photographer_101 Here’s a question to you, not to be rude but to help you think through the level of risk/worry (and I’ve asked it of myself in the past): are you currently published or otherwise engaged in commerce with your past photographic pursuits, and how likely is it that your future street photography will enter the realm of commerce. The answer for me when this issue became interesting was basically “no” so I went on with life and did what I wanted to do. Very seldom did anyone seriously object and occasionally people would hide their face by turning away. I’d assume the same would be likely in Canada. No matter, it’s a very interesting question to explore. Best wishes…

 

[CMoore]

Hi all.

This is my first time posting here and need some advice. I live in downtown Toronto, ON, Canada.

I just got a new Fuji X-T5 about a week ago. I purchased a used Fuji 18-55mm lens.

I have done extensive research on what lens to purchase next. I shot some tests today. I am looking into exploring street photography. Originally my next lens I was going to buy was a Fuji 35mm f2 but I am having second thoughts. I currently take all sorts of types of photography, I used to love landscape style photography but I want to explore the possibility of street photography.

The laws in Canada, for shooting people in public, and either using their likeness on a website, online portfolio, in print, and/or if down the line I wish to publish a photo book of street photography portraits I am rethinking a 35mm.

If one uses a 18mm f1.4 a shot of a person across a street but you cannot clearly make out the person's face, do you think this is safer to use in a professional setting with low chances of getting sued? I understand if I paid someone on the street a small fee and had them sign a contract so I can use their likeness, I know the risk is low, and I know legally you can take someone's photo in a public place but you cannot publish the photo without consent right?

I mean, I took some photos today, high angles looking down so the face is not seen, but doing all high angles looking down is going to get boring very fast for most viewers.

The other lens I really want to get is the 75mm f1.4 from Viltrox, but again, I feel like I need to be careful shooting people in public without their permission.

Am I being too paranoid? I just don't want to take an amazing photo of someone, like a portrait, but have to risk getting sued in Canada if I ever decide to publish such a photo, either online, or as a print or later in life in a photo book.

Any advice is appreciated.

Thanks!

How many photographers have been sued in the few scenarios you mention.?
If you publish a book, how many people are ever going to see it.?
Are laws in Canada that much different than in the usa.?

 

[MattKing]

Are laws in Canada that much different than in the usa.?

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.

 

[Sirius Glass]

Welcome to Photrio!

I found that in most cases the 35mm lens is too close to the 50mm lens, and that the 28mm lens is a better choice.

If one does not post any photographs on the internet there is nothing to worry about except for entering contests or putting on a photo exhibit.

 

[CMoore]

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.

10-4
Thank You

 

[Photographer_101]

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.

 

[MattKing]

Look for volunteer events that have a history of collaboration with local photographers, because there is a better chance that they have people amongst the organizers who understand the realities.
I wouldn't expect to be able to watermark though - just ask for photo credits in the original presentation. You can expect to have your work appropriated without credit after that!

 

[Photographer_101]

True. Asking for RAW files that's not normal right? I mean even some professional photographers I know rarely provide RAW files to a client because RAW is an unfinished product.

So asking for RAW files in a volunteer role is this normal? Especially for a NINE HOUR event?

 

[MattKing]

I think that the desire for RAW photos is an offshoot of concerns about people submitting the sort of doctored photos as to render the photography unreliable and misleading. You know, something like changing the order of the finishers in a road race.