Selling Street Photography

[h.v.]

Something that I've often wondered about for the past little while is how professional street photographers, or even amateurs for that matter, get away with publishing books, doing gallery exhibits, etc. when they don't have a persons permission to use their photo for money (maybe the street photographer likes more candid looks).

I realize the laws are different in each and every country, but the general consensus seems to be that you may take someone's picture in a public location, or from a public location, without their permission, provided it is for non-commercial use. So how does Elliott Erwitt and Fred Herzog and others get away with publishing (and of course selling) photos containing candid street photos? What about Vivian Maier? Surely you can't know for sure whether or not she gained permission to take people's photos (and most of them appear as though she didn't), so how can you legally publish them in a book and, of course, turn a profit?

And what about galleries? I know there is huge variability with that, as the photos could be donated, for example. But what about if the artist gains money from a gallery exhibition (for example, a portion of admission tickets sold)?

And of course there are straight prints that I've seen be sold or for sale (more by amateurs than professionals, though) that have people in them as the main subject. What about those? How can those prints legally be sold without prior consent from the subject of the photo?

 

[Brian Legge]

One reference that may be of interest (for those in the US):

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

 

[markbarendt]

The way I understand it, here in the USA, is that commercial use is when a photo is sold to to say Ford for use in a brochure or ad. This type of work requires releases.

If the photo is sold as art though, it's not "commercial". No release needed.

The other concept in play is that when "we" are in a public space our eyes cannot trespass, everything we can see is fair game. If someone wants privacy it's up to them to fence "us" out.

If I step off the sidewalk onto your lawn though the rules change.

 

[Gadfly_71]

Mark is essentially correct. In a public space there can be no expectation of privacy, no permission required to snap away. Street photography sold as prints or in books is not considered commercial, it is considered editorial/artistic which is enough CYA for most street photography. It's when you sell the images for stock or advertising (or other "non" editiorial or artistic use) that model release is required if there's any one recognizable in the photograph.

Brian's link is spot on.

Of course IANAL, YMMV and all of this really only applies in the United States. Other countries may have different rules.

 

[jordanstarr]

When you enter the public sphere, you give up your right to privacy. 'nuff said.

However, when you add an editorial to the photo and sell it (in a story, article or ad), you adding libel attributes to that individual and you would be up against some legal implications. As the photos stand alone, it's all fine and good. Shoot away.

 

[h.v.]

Well, I realize you should not expect privacy in a public space. I mentioned that in the original post. That's interesting though that a book or exhibition or print for sale (technically commercial, as you are gaining money from it) is considered art (and rightly so) and thus considered something different. But that's the U.S. What about Canada or Western Europe?

 

[Steve Smith]

They don't get away with it as it's not illegal (same in the UK as the US).


Steve.

 

[MattKing]

Well, I realize you should not expect privacy in a public space. I mentioned that in the original post. That's interesting though that a book or exhibition or print for sale (technically commercial, as you are gaining money from it) is considered art (and rightly so) and thus considered something different. But that's the U.S. What about Canada or Western Europe?

Strictly speaking, in Canada the law will vary from province to province, because the rights involved fall under provincial jurisdiction.

Practically speaking, the situation in all the common-law provinces is substantially the same - use in a photographic art book or exhibition does not require a model release, because you are not appropriating any commercial interest from the people who are subjects of the photos.

It has nothing to do with whether or not you are selling a book - it is only related to the use you are making of the content of the image. If you are using the image to advertise something, then the subjects of the photo appear to be contributing to that purpose, and are therefore entitled to a commercial reward.

The situation may be different in Quebec. There is legislation in that province that protects rights of privacy in a way that makes it advisable to try to obtain a model release for published street photography.

 

[benjiboy]

Before attempting to sell street photography I would take some professional legal advice.

 

[marciofs]

You can publish anything that is public interest like news, culture and art, as far you don't damage people image and security.
And you can sell photos of any body in a public place that you can't recognise the face.

News paper and TV news publish image of peoples every time without asking people permission. And they earn money selling news. But since the news is public interest, culture, information, art, it' ok.

 

[h.v.]

^ You just contradicted yourself. You said you can sell the photos if it was taken in the public realm, provided you can't recognize a face. But then you say the media makes money off of publishing people's photos as part of reportage. All the great street photographers have many prints of theirs for sale, even ones with recognizable faces, because it is considered art. Maybe Germany is different...

 

[marciofs]

It is not a contradiction it is a reinforcement. I just didn't make it clear, sorry.

If a person can recognise themselves, even if you are doing nothing wrong and even if you win in the court, they can sue you, making you spend time, money and tranquillity. But if they recognise themselves even if the face is not showing, it is easier to convince them that they will waist their and your time worrying about.

 

[h.v.]

Tell that to Joel Meyerowitz, Henri Cartier-Bresson, John Maloof (who handles Vivan Maier's photographs), Lee Friedlander, etc. then. If it is for artistic or editorial purposes, then you shouldn't need to worry, at least not in North America (or many other countries). What happens in Germany doesn't necessarily happen elsewhere. Even within Germany or other nations fiercely protective of privacy like France, people sell street photos as it is a vital art form and documentation of life. People can technically sue you for all sorts of reasons, whether or not they win is the more important angle.

 

[AgX]

h.v., I like to repeat what I wrote in another thread of yours on that matter:

You got a misconception of the legal situation in Germany. It is of NO interest wether the photographer earns any money with those photos or not, not even of interest whether the photographer intends to earn money or not. Actually it is of no interest at all what the purpose of publishing is.
Thus it is even of no interest if you have an artistic intent, because in the end it is not you to decide whether you are making art.

There are exceptions to this rule, but basically it is not advisable to publish photographs of people on street without a a good evaluation of the situation or a consent. I myself was threatened with a legal case.


That there are still a lot of such photos around can be explained by people not being bothered or just not knowing about those photos or their legal position. Or they are detered by the costs a legal case may bring up.

A legal situation not necessarily reflects the attitude of a nation...

...but it may give means to those who are bothered.

 

[marciofs]

AgX,

It means that all these images of street photography in Germany are not legal?
Should I stop doing so?

 

[AgX]

Taking photographs is basically legal. Publishing photos against the will of the subject is illegal in most cases.

But as indicated the legal situation does not necessarily mean that every subject has a problem with publication.

 

[AgX]

Taking photographs is basically legal. Publishing photos against the will of the subject is illegal in most cases.

But as indicated the legal situation does not necessarily mean that every subject has a problem with publication.

 

[h.v.]

h.v., I like to repeat what I wrote in another thread of yours on that matter:

You got a misconception of the legal situation in Germany. It is of NO interest wether the photographer earns any money with those photos or not, not even of interest whether the photographer intends to earn money or not. Actually it is of no interest at all what the purpose of publishing is.
Thus it is even of no interest if you have an artistic intent, because in the end it is not you to decide whether you are making art.

There are exceptions to this rule, but basically it is not advisable to publish photographs of people on street without a a good evaluation of the situation or a consent. I myself was threatened with a legal case.


That there are still a lot of such photos around can be explained by people not being bothered or just not knowing about those photos or their legal position. Or they are detered by the costs a legal case may bring up.

A legal situation not necessarily reflects the attitude of a nation...

...but it may give means to those who are bothered.

No, I get that. But what I am saying is that this may be the case in Germany, but not in Canada or the US or UK. There is no law against publishing street photos for artistic or editorial purposes -- full stop. If you're in public, there is zero expectation of privacy. This may be different in Germany (with regards to publishing) but not where I am. Even these privacy laws don't prevent street photography from occurring in Germany and you guys are lucky to have such people, because you'd be worse off without them.

No, there is still a lot of photos out there simply because street photographers aren't doing anything wrong. Of course someone can make a legal case, but that doesn't matter if they do not win. Time and time again, courts err on the side of the photographer. Even in privacy-laden France, there have been court cases that have ruled in favour of the photographer, citing that French society would be worse off without these documents of life. Street photographers can have success even and yet most won't bat an eye. Street photography is a valid form of artistic expression and societal documentation.

I'm sorry, but if I don't get to decide whether or not I am making art, then nobody gets to decide. What is and isn't art is so subjective and no two people every agree 100% on what is and isn't considered art. There isn't a government regulated handbook on what is considered art and what isn't. So in the end, it is in fact up to the individual, whether or not they consider what they're doing to be art. It shouldn't be of consequence whether or not someone else thinks their work is art or not. If an artist thinks they're making art, then they're making art. That's the only reasonable way to decide if something is objectively art or not.

News agencies around the world routinely publish snapshots from newsworthy scenes around the world, many times it is clear that consent was not arranged. Yet no legal action happens because it is editorial. Same reason why nobody gets all huffy if they happen to be in The Modern Century. If anything, that would be an honour.

 

[realart21]

Street photography is captured the real events in photos.