Since the birth of street photography, there has been a clash between the photographers prowling the streets trying to capture the lives of ordinary people to turn them into works of art, and the subjects of those photos who feel violated by the unauthorized use of their likeness. In fact, the development of right to privacy laws began over fears that “yellow journalists” might abuse the newly developed handheld camera for sensationalist news reports. From the street photographers’ perspective, privacy should not inhibit their freedom of expression. From the legal perspective then, street photography is about balancing a photographer’s First Amendment freedom of expression against a person’s right to privacy. To complicate matters further, there are several other legal doctrines that impact the outcome of the expression vs. privacy battle, such as national security, trespassing, harassment, or even governmental regulations.
The result of these conflicting elements is confusion among street photographers and the general public regarding what is permissible under the law. There is even more disparity on the ethics of publishing photos of strangers without their consent. Yet, street photographers need some guidance. While it may be effective to download a reference to carry around, containing a synopsis of your right regarding street photography such as in The Photographer’s Rights by attorney Bert P. Krages II, (which I encourage you to download and put into your camera bag), it also helps to understand the underlying reasoning behind these laws so you can should be able to tease out potential outcomes of your actions, without wasting time referring to a rule book.
Freedom of Expression vs. The Right to Privacy
As a general rule, if a photographer is shooting from a public space, such as a street or a park, he or she will usually have the right to do so without the consent of the of the subjects. Generally speaking, if you can see it from a public space, you can take a picture of it.
Ok, but why do photographers have such latitude? The legal reasoning, at least in the United States, stems from the First Amendment’s freedom of expression clause and the long line of Supreme Court decisions that have interpreted it. The Founding Fathers believed that a free society is one in which a person can speak his or her mind without fear of reprisals by those in power or by those who may disagree. Our society is based on the idea that everyone is better off when people may freely create and express themselves, and when information flows unencumbered, to ensure an informed citizenry. Since art and editorial works are considered a protectable expression of one’s mind, courts will give that expression a wide latitude. Street photography is a perfect example. More than just pretty pictures, street photographers tell stories intended to illuminate aspects of society, whether it’s Martha Cooper capturing New York’s Graffiti Gangs in the 1980’s, or Robert Frank showing us the Beauty and Horror of 1950’s America depicting various aspects of society. Hampering creative genius harms society, and therefore restrictions on speech and expression is only acceptable when that speech or expression serves to harm others, such as inciting people to riot.
On the other hand, despite not being expressly mentioned in the Constitution, privacy has also become an important right. The right of privacy has been derived from personal protections articulated in the Bill of Rights, such as the privacy of beliefs (the First Amendment), privacy of the home against demands that it be used to house soldiers during peacetime (the Third Amendment), protection of one’s person and possessions against unreasonable searches (the Fourth Amendment), and right to not self-incriminate, which protects the privacy of personal information (the Fifth Amendment).
So the legal boundaries through which the street photographer operates are really a balancing act between two important, but sometimes competing policy objectives of the Nation’s fundamental principles: the right to express oneself and the right of the everyday person to be left alone. Since neither side can have too much control, the courts have sought to develop reasonable limitations on both sides.
There is No Right to Privacy in Public
Privacy is defined as “the state or condition of being free from being observed or disturbed by other people.” Obviously, it would be objectively unreasonable to expect privacy on a city street or on a crowded subway. So, when someone claims that anyone may take photographs of whatever they want when they are in a public place, another way of saying that the privacy right of a person doesn’t apply unless that person has a reasonable expectation of privacy. Put more directly, you have given up any expectation that you cannot be “observed or disturbed by other people” by virtue of entering a public space or being in a position where you can be seen by others in a public space. And that is why when in a public space, a street photographer can take a picture of anything he or she can see from that vantage point, even including subjects on private property, so long as they are within public view. For example, a photographer would be free to photograph a couple sitting on a restaurant patio, or even inside the restaurant through a window, so long as the photographer is on public property.
On the other hand, it is illegal to take photos of people where they have a reasonable expectation of privacy. If you are in a public bathroom stall with the door closed, there is a clear expectation of privacy, such that nobody can shove a camera over the stall and take a photo of you. However, if you are in a private hotel with a giant window, and the photographer can view you from the street, even if a telephoto lens was necessary, then there is no expectation of privacy. While reasonable minds might differ about whether the act crosses an ethical line, it isn’t illegal. Absent some law expressly establishing an expectation of privacy, the photographer could shoot photos of you without your permission.
For example, in 2014, the Massachusetts Supreme Court ruled that secretly photographing under a woman’s skirt, or “upskirting,” was not illegal because the “peeping tom” law did not apply where the people photographed are fully clothed. While it may seem that there is an expectation of privacy under someone’s skirt, if someone can see it from a public space, then such expectation simply doesn’t exist, and because of the limitations in the “peeping tom” law, the photographer ultimately won. That result led to an amendment to the law so that it would specifically include upskirting. Following suit, in May 2016, New Jersey added viable upskirting statute. The new law prohibits the:
“photographing, filming, publishing and sharing of images taken of the clothed intimate parts of another without his or her consent, and under circumstances in which a reasonable person would not expect to have his or her private body parts seen.”
Note the “and,” which maintains the expectation of privacy but clarifies it so that despite being able to see under the skirt in a public place, there is nonetheless and expectation of privacy for keeping a woman’s “private body parts” hidden. Other states that have passed upskirt statutes likely have similar language, which will be the law unless one of the high state or federal courts believes that the statute limits a photographer’s freedom of expression.
Art vs. Commercial Purpose
While photographers have broad freedom to take photos in public places and the people in them without consent, the limitation on that expression are usually centered around whether the work is expressive or commercial. When the use of the photos is for artistic expression, then the First Amendment protections prevail and the photographer can likely use the photos without authorization from the subject. However, when a photo is used for a commercial purpose, the photo can lose its status as “art” and therefore it is entitled to less First Amendment protection.
What do we mean by commercial purpose? It means selling a work directly or indirectly for profit. The problem then becomes that if anyone wishes to sell their street photography, then they may be stopped due to the privacy concerns of the subjects since the First Amendment no longer provides a shield. This constant battle would be disastrous for artists who be prevented from making a living off of their art merely because people in the photos are recognizable. Imagine taking a high-resolution image at a concert and not being able to sell it because someone in the stands doesn’t want their likeness used in a commercial context. To resolve this tension, and enable artists to create works without fear of legal actions, exceptions to have been developed by courts over the years, and sometimes more explicitly in state statutes.
Under the exceptions, the mere sale or transfer of a work does not make it commercial. Courts are more likely to conclude a work is being used for a commercial purpose if it is used to promote or advertise a product, company, or even another person. So, selling images for profit, whether that be online or in a gallery, is not considered a commercial purpose. Unfortunately, knowing where the line between art and commercial purpose resides is difficult and varies by state.
A great example is a recent case in which photographer Arne Svenson’s took photos of his neighbors through their apartment windows without their knowledge or consent. Svenson’s show, “Neighbors,” opened at a major gallery, after which he was promptly sued for invasion of privacy. Svenson won the case due to the fact that having left their curtains open, the neighbors had no reasonable expectation of privacy from people seeing them on the street. And, since the work was an artistic expression, being shown in a gallery as art, and not for a commercial purpose (to promote or advertise a product, company or person), the neighbors’ right to privacy claims failed. It would get trickier if Svenson then made t-shirts of his work. Even though the shirts are commercial, the underlying purpose is still expression. However, had Svenson not shown the works at an art gallery and simply put the images on t-shirts, the court might have reached a different conclusion. And of course, if he used the photos as an ad to sell apartments in the building or something similar, that would clearly be commercial.
Other Laws Can Affect Freedom of Expression
Commercial purpose is not the only limitation imposed on freedom of expression. There are a host of laws that can limit the First Amendment rights, such as national security, safety, health or personal protection laws. For example, while it may be perfectly legal to photograph strangers in public places, as soon as the photographer steps onto private property, he or she could be trespassing. Expression that is derived from an illegal act may not receive as much First Amendment protection, which is thought to be a deterrent for such conduct.
Even where entering private property isn’t immediately considered trespassing, such as a hotel, the photographer is obligated to comply with the property’s rules (or that of its agents, such as an employee or security guard), even if those rules aren’t readily visible. Just because you don’t see a “no photography” sign, doesn’t mean that photography is allowed. If a security guard tells you that photography is prohibited, rebutting with “I don’t see any signs” is not an appropriate retort, and does not have any impact on your legal position, except perhaps to irritate the guard. Even seemingly public places, like city parks, may have rules that may impact a photographer.
For example, the government could put restrictions on the use of certain types of equipment, such tripods or supplemental lighting, since they can disrupt the general flow of traffic or create a safety hazard. Additionally, those areas critical to a city’s infrastructure such as subways tunnels or power plants may also have restrictions based on security and terrorism. Courts have generally concluded that such rules comport with the Constitution, so long as they are enacted for legitimate safety reasons, and not as an attempt to quell unwanted speech. So, if you plan on doing a shoot that requires excessive equipment, spending time in heavily trafficked areas or locations that might have a security concern, it is a good idea to check the rules. It may also pay to have those rules printed out and available in case police or another official who may not know the rules, asks you to leave.
Additionally, military bases, crime scenes, airports, museums, energy installations, courthouses, public hospitals, and certain government facilities may also be off limits to photographers or subject to significant limitations for security, privacy, or logistical reasons.
While street photographers may have broad discretion on what to photograph, the rights are far from absolute. If you think of your next shoot from the perspective of privacy, you can likely make a good guess as to whether your photo is invading the privacy of others or whether your use of the photo could lose you your First Amendment protections. Still, even if your street photographs are well within the bounds of artistic expression and non-commercial in nature, you never know what you may want to do with them in the future, or how the law may change over time. When possible, it never hurts to get a release signed. It’s much easier to get a release immediately before or after photographing a subject than it is to try to track down a stranger later. (Download our generic model release here, to help get you started).
Have you run into any issues when taking photos in public? Let us know in the comments below.
As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.