Originally published on March 27, 2017 in Rangefinder Magazine.
Because street photography seeks to capture moments in their purest form, photographers do not typically warn or seek consent from their subjects before pressing the shutter. As a result, street photography inherently comes with some risk of trouble. Some may even file a lawsuit, not only to stop the distribution or display of the photograph, but also claim (or negotiate in settlement) monetary relief.
While street photography, even when displayed or sold, may in some cases be considered protected speech under the First Amendment of the United States Constitution, that alone does not prevent an aggrieved person from filing a lawsuit in the first place. Moreover, any fight in court involves some level of uncertainty and comes at a cost. Because it isn’t always possible to avoid legal trouble, photographers can benefit from becoming aware of the risks associated with street photography.
Street Photography and Invasion of Privacy Laws
A subject’s cause of action against a photographer may depend on the image itself and what is featured in it. Generally, however, claimants suing photographers over street photographs invoke invasion of privacy laws, which - as the name suggests, and in simple terms - may involve allegations that something private was: improperly intruded upon and/or made public; misrepresented to the public; or used for someone else’s personal gain.
Because each state has its own invasion of privacy laws, what is legal/illegal may vary by state. It is, therefore, important for photographers to read the invasion of privacy (or similar) laws of the state (or country) in which they photograph. There are also other considerations that photographers should bear in mind when shooting street photography, which I highlight here, such as where the photograph is being taken, what the intended use of the image will be, and whether to secure consent by the subject.
The Public/Private Distinction
Asserting a claim of invasion of privacy most often requires the claimant’s privacy to have been compromised in some way. In general, one cannot have a reasonable expectation of privacy in things that one holds out to the public. This is why courts have determined that taking a photo of someone in public does not invade one’s reasonable expectation of privacy. However, the distinction between what is in “public” and “private” is not always clear. For example, photographing someone while they are inside their home from a public street may be deemed an invasion of that person’s reasonable expectation of privacy - even if what is being photographed is in the public’s view. Technological advancements of other photography capabilities, such as the use of drones, also enables the photographing of people in places and ways they may not expect. What courts may consider to be in the public or private view changes with time and among judges and jurisdictions. Photographers must know that these distinctions may change and are not always consistently defined or clear.
Moreover, that a person holds themselves in plain sight does not alone render legal claims easily defeatable. Courts will often (sometimes perhaps even wrongly), give the claimant the benefit of the doubt, and move the action towards trial, making the path to victory more costly, and perhaps even less certain.
Using the Image
How a photographer uses an image can affect whether courts deem the photograph and its use as protected speech under the First Amendment, defensible for other reasons, or not protected at all. Laws often draw these distinctions by first determining whether the photographer’s use of the image is non-commercial or commercial.
The First Amendment most clearly protects photographers when they use their images for purposes that are deemed non-commercial. The Supreme Court has stated that speech intended for commerce (or commercial speech) has less protection under the First Amendment. But what is the difference between commercial and non-commercial uses?
Courts interpret for themselves whether an image is being used for a commercial or non-commercial purpose. Most courts would likely deem using an image to promote a product in commerce (such as in an advertisement) commercial speech, which generally - depending on context - gets less protection. Featuring the image in a news publication, on the other hand, or displaying it as a piece of art - even if made available for purchase - are uses that courts would likely label as non-commercial. The distinction between commercial and non-commercial speech, however, is not always clear. Sometimes what the photographer intended at the time the image was used may affect the outcome of this decision. Several different factors, in fact too many to list here, may persuade a court one way or another.
Obtaining Consent (or Not)
Any time photographers take a photo in public, they have the option to seek consent from their subjects. While obtaining consent to photograph anyone in public (even minors) is not legally required, it can go a long way in preventing and defending against a lawsuit for invasion of privacy. If you decide against obtaining consent, know that in some instances consent may be implied. For example, a court may find that someone has given his implied consent if he poses for the photographer or sees the photographer taking the picture, but does not ask her to stop. Implied consent alone, however, does not necessarily protect the photographer against allegations of commercial use.
To avoid all possible challenges, and protect all possible uses, a photographer may ask the subject(s) of street photography, especially those who are recognizable in the image, to sign a written model release. Maintaining the candid integrity of a street photograph is possible by having the model release signed after taking the shot. While this is a great way to avoid litigation, the subject is then the one who determines whether or how much consent to grant.