Retaliation!

[Mike Farley]

I was at the Chelsea Flower Show today and came across this pair filming in one of the main thoroughfares. Attached to the camera was a notice, with fairly small print which could only be seen at close quarters, which stated that they had given themselves the right to use images taken of passers by for any purpose they wish. The only way to avoid being filmed was to stay away from the camera. The only way to know what was going on was to venture up to the camera.

In view of this Catch 22 situation, I decided to take their photograph and publish here. And anywhere else I choose, for that matter.

[davidc]

Sticking a note on the side of the camera doesn't avoid te need for model release forms given the Chelsea flower show is not a public location/property!

[Mike Farley]

This does raise an interesting point. I agree that the notice is of dubious legal validity and has probably been put on the camera to help deter/fend off those members of the public who might take issue. That said, a number of my shots, including those taken for my PAD, are candid images of people. It is likely that the one I will eventually post for yesterday (when I eventually catch up with my posting) was taken at the show will feature someone who was unaware of the camera. Does that make me any better?

My pictures will probably only have a limited circulation, so in the circumstances the subjects might be considered "fair game" in this photohgraphic sport. But what if I did want to make some money from them? Commercial use such as advertising would almost certainly require a model release, but publication in a book or magazine could be different. A few years ago I took a series of shots, with permission, of stall holders in a market. A while later I showed them to a couple of professional photographers who told me that a magazine could well be interested in publishing them. When I asked about model releases, I was told that they were not necessary for the purpose. At the time, I had told the people whose photos I took that they were for my own use and I have always stood by that.

As most street photography images which feature in books are candids, I would imagine that the same principle applies to this form of publication as well.

[Rose]

You can't require a model release for every single individual whose image may be captured in a public space and there is "implied" permission in these circumstance - that's what the notice effectively advises. Otherwise virually every news broadcast would have to be redacted with blurred out faces. On the other hand, if you are aware that you may have been captured or are likely to be captured and don't want to have your image shown, it's my understanding that you have the right to say you wish to remain anonymous.

[davidc]

In a public place it's fair game - you are entitled to take anyone's picture and they simply have no legal recourse unless they could prove you were harassing them.

However there are fewer public places than people realise and taking pictures on private property is a different kettle of fish. The model release isn't necessarily linked to the status of the place you're (but in my experience can be). Model release almost always a requirement the publisher has because if someone objects to their picture appearing in print it's the publisher, not the photographer, who is on the hook - they'll get the hassle and potential cost of being sued.

So if you are taking street shots on a public street and publish the shots you are legally entitled to (again providing it's not breaking other laws like harrassment). But let's imagine you snap two people having an affair and that image is circulated... opens you up to being sued, even though legally you're fine it's the hassle and cost. That's why publishers ask for releases to completely remove that risk. I imagine the only reason lesser publications don't bother is that they'd probably check images before publishing for anything suspect and then rely on the relatively low audience to avoid trouble.

I track Getty Images when they put out requests for images and every single one, from "scenes of families enjoying time in a public park" to model shoots require model releases or they don't consider you.

[Mike Farley]

In a public place it's fair game - you are entitled to take anyone's picture and they simply have no legal recourse unless they could prove you were harassing them.

However there are fewer public places than people realise and taking pictures on private property is a different kettle of fish. The model release isn't necessarily linked to the status of the place you're (but in my experience can be). Model release almost always a requirement the publisher has because if someone objects to their picture appearing in print it's the publisher, not the photographer, who is on the hook - they'll get the hassle and potential cost of being sued.

So if you are taking street shots on a public street and publish the shots you are legally entitled to (again providing it's not breaking other laws like harrassment). But let's imagine you snap two people having an affair and that image is circulated... opens you up to being sued, even though legally you're fine it's the hassle and cost. That's why publishers ask for releases to completely remove that risk. I imagine the only reason lesser publications don't bother is that they'd probably check images before publishing for anything suspect and then rely on the relatively low audience to avoid trouble.

I track Getty Images when they put out requests for images and every single one, from "scenes of families enjoying time in a public park" to model shoots require model releases or they don't consider you.

This seems to be a fair summary of the position. It is my understanding that no one has a right to their image when in a public place. There does not appear to be a total consensus in law of what constitutes a public place and it could be open to interpretation in court, although generally it is defined as somewhere to which the public has access, regardless of whether or not payment is required. On this basis, the Chelsea Flower Show would fall under the definition of being a "public place".

Photographing someone, even if they do not want to be, does not necessarily constitute harassment, although it could be so construed if it causes alarm or distress through repetition. Common sense would dictate that if someone objects to having their photograph taken, then it is best to stop immediately, certainly in the case of non professionals. So far as I am aware, once taken there is no onus on the photographer not to use the image, but once again courtesy and common sense would indicate that it would be unwise to do so. As Dave says, there is a risk of being sued, regardless of the legal rights and wrongs, which is why model releases are requested as standard in many instances.

A few years ago, Amateur Photographer published images taken of patients at a mental health hospital by a nurse who was working there. None could be construed as being demeaning in any way and appeared to have been shot with the full knowledge of the subject. Many years ago, I used to know the photographer and while the pictures dated from a later time, I would be surprised if he had done anything surreptitious. Given their circumstances, it might be argued that legally some or all of these depicted could not have given knowing consent and I doubt if there were any model releases. None of which was a bar to their use by Amateur Photographer.

All of which leaves me a bit puzzled about the note on the camera at Chelsea, which would seem to be unnecessary. There were other camera crews at the show and none of them had anything similar. Whether or not the people concerned were familiar with the legalities, it probably helps saves hassle from some individuals.

Where the law in this country is clear is that people have a clear expectation of privacy when in a private place, even if a photograph is taken from somewhere public. A recent case in the US, where there appears to be some doubt as to the legality of the photographer's actions (albeit morally he is way out of line), would not be tolerated here.

http://www.washingtonpost.com/national/ ... story.html

[Mike Farley]

It is worth mentioning that when I was researching my previous post, I referred to a couple of the legal websites which are referenced in the "No Photographs Please" section of the club's own website. Two very useful resources, which greatly helped my understanding of the law in relation to photography.

http://www.sirimo.co.uk/2009/05/14/uk-p ... rights-v2/

http://www.scenethat.co.uk/default.asp