What should you bear in mind when photographing people?
There is no general legal requirement to obtain someone’s authorization to take his or her photograph. However, there are situations where photography can infringe on important social interests such as national security, protection of children, right of privacy, etc. Most of these situations are strictly controlled by national laws and regulations. Irrespective of the legalities, there are also some things a photographer should not photograph for ethical reasons. Certain photographs of people may amount to exploiting persons or misrepresenting the truth. If you, as a photographer, know the law and one’s legal rights, you will also be in a better position to find solutions that minimize your legal risks.
Often, you may be free to take a photograph of a person, but the way the image is used may give the person shown in the photograph a right to take legal action. Although most lawsuits are filed against the person who uses the photograph (like the print media) rather than against the photographer, photographers should nevertheless be aware of these potential liabilities.
Are people protected by intellectual property rights?
People are not protected by intellectual property rights. But be cautious when you photograph someone who is wearing something protected by copyright, industrial design or trademark rights. For example:
- a model wearing a piece of haute couture or some jewelry;
- an actor wearing a theatrical costume;
- a sportsperson wearing a t-shirt with a badge or logo on it.
When is a permission particularly recommended?
When you snap a picture of another person, two fundamental rights often come into play: the right of the photographer to free expression and the right of the subject to privacy (the right to be left alone). Many countries have privacy laws that affect the circumstances in which you may photograph people and, to a much broader extent, the circumstances in which you may use images of people. Hereunder, I discuss some potential restrictions on taking and using images of people.
• Intruding one’s privacy
Photographers can be liable for violating the privacy rights of others when they intentionally intrude in an offensive way upon someone’s private domain. You can usually photograph someone in a public place. But if you intentionally view and photograph people inside their homes, business or other private areas - uninvited, you are likely to violate their privacy rights. An offensive intrusion can be anything from entering an individual’s house under false pretense, to setting up hidden cameras in order to spy.
Example: photographing patients who are being treated in a hospital can be sanctioned for intrusion of privacy. ???
• Publicizing private facts
Disclosing a matter concerning someone’s private life to the public could also raise issues of privacy rights. Unless you have permission, you should refrain from publishing or distributing any photo that reveals private affairs of a person, especially if the matter publicized is of a kind that (a) would be highly offensive and (b) is not of concern to the public. Photographs revealing sexual affairs, private debts, criminal records, certain diseases, psychological problems, etc. are likely to violate privacy rights.
Example: suppose a beer brewery is selling a calendar that depicts an unknown person driving a car with a refreshing pint in his hand. This could raise issues of privacy because it discloses private or sensitive matters about the person.
However, in most countries, the right of privacy does not protect against disclosure of matters of legitimate public concern such as newsworthy events. This means that politicians, celebrities and other newsworthy persons may lose their right to privacy to the extent that their private facts are relevant to legitimate news.
Example: you would generally be allowed to publish photos of a top football player taking performance-enhancing drugs, because this is a newsworthy fact. But revealing his sexual activities may be an invasion of his privacy because this disclosure is highly personal and has no bearing upon his public role.
Furthermore, many laws do not protect private matters if they are in public view (unless the portrayed person has taken care not to disclose private details to casual observers). Thus, a photo of a mother grieving for her daughter who was victim in a car accident, if is was taken out on the street, can usually not be considered invasion of privacy. But this does not mean that all such photography is ethical. There are situations where photographers should consider refraining from photographing people, even if it would be legal.
In case of doubt, the best way to protect yourself from being sued for infringement of privacy rights is to obtain written permission from the person you want to photograph.
• Using someone’s image for commercial benefit
Many countries recognize that individuals have a right of publicity. The right of publicity is the direct opposite of the right of privacy. It recognizes that a person’s image has economic value that is presumed to be the result of the person’s own effort and it gives to each person the right to exploit their own image.
Under this right, you could be liable if you use a photograph of someone without their consent to gain some commercial benefit. You should act with special caution before using a photograph of a celebrity for your own commercial gain. If you consider selling photos of celebrities or using them in advertisements or on your website, then you should certainly obtain photographic releases from the people portrayed in your shots.
Example: imagine you put an unauthorized photograph of the tennis star Kim Clijsters on the cover of a sports magazine after winning a grand slam final. This would probably not be considered an infringement of Kim’s right of publicity, since the use is mainly informative. Conversely, if you print that same picture on posters and market them, you are simply trying to make money by exploiting her image. Kim Clijsters would have grounds to file a lawsuit for infringement of her right of publicity and recover compensation.
• Suggesting that someone is authorizing or endorsing a product or service
Golf star Tiger Woods acts in Buick commercials, tennis player Anna Kournikova promotes Omega Watches and Nicole Kidman is the new face of Chanel No 5. Businesses have long appreciated the value that celebrities bring to the promotion of their wares. The presence of a celebrity seems to be an effective tool of quickly attracting consumer attention to a product or service and creating high-perceived value and credibility.
However, if you use a photograph of a person in an advertisement to sell products or promote services, it is strongly advisable to get prior explicit permission from that person. Without authorization, that person could have grounds to take action against you for “passing off” or for “unfair trade practices.”
Example: if you put the face of Kim Clijsters on the packaging of tennis balls, you are suggesting that she endorses the tennis balls. Thus you are capitalizing on her reputation.
• Putting someone in a false light or defame someone
Photographs can place someone in a false light or defame someone. It can occur, for example, when a picture is airbrushed or altered in a way that exposes the subject to hatred or ridicule. It can also occur when a photo is used to illustrate text in a way that it creates a false impression. This often happens when significant information about someone is either omitted from or added to a story such that the person is portrayed in a false light.
Example: a photo depicts a man who is incidentally walking in front of a brothel. Publishing that to illustrate an article on child prostitution could lead to a lawsuit.
Example: adding a caption under a photograph of a Buddhist leader falsely attributing a quote on religious intolerance to him, is likely to amount to defamation.
Example: figure skater Nancy Kerrigan brought a defamation suit against a company that was selling pornographic photos fudged to resemble her. One photo showed a nude woman ice-skating. Nancy Kerrigan’s face was affixed onto the nude body. The photos were advertised on the Internet and could be bought on a CD-ROM.
Example: photographers may be liable for defamation, false advertising or unfair competition if they help to create advertisements that lower the reputation of a competitor’ character, his business or his products or services.
Be careful if your photographs are used in a way that exposes someone to hatred, ridicule or contempt, or reflects unfavorably upon one’s personal morality or integrity. A person who is portrayed in a false light or defamed may bring a lawsuit against you for the damages he has suffered (such as humiliation, the loss of a job or the ability to earn a living).
