Ethics and law in street photography is something that can create a lot of confusion and debate in the community. No matter how well you know the law, you’ll often come upon situations that will be new to you. Also, not everything is black and white in street photography: sometimes even lawful things can still be unethical. To help you answer the most common questions on the law and ethics in street photography, Sean Tucker has filmed yet another fantastic video. He interviewed Nick Dunmur, a member of the legal team at the Association of Photographers (AOP), who will help you deal with anything that might be baffling you.
In the video, Sean has answered the most common questions raised by his followers on Instagram. Since he is UK-based, most of the answers are applicable in the UK. However, he also dug into the laws in Germany and the US. Still, I believe that all the advice given in the video will be useful to all of you, no matter where you are. These answers work as general guidelines, and you can do additional research to make sure that the same rules are valid in your country, too.
What can I photograph in the public space?
If you’re in a public place, you can photograph anything and anybody. In case you were wondering: yes, this includes children too.
But there’s a caveat concerning what is considered to be public space. As Nick points put, sometimes people think they’re in public and they actually aren’t. For example, if you’re walking on the right side of the Thames down the walkway, a part of that walkway is actually the private property of all the businesses there. The inside of shopping centers is also often private property, so don’t be surprised if you get challenged by security for taking photos.
Now, when it comes to using photos commercially, keep in mind that some buildings are under a trademark. If you want to sell photos or use them commercially in any way, you’ll need a clearance from the copyright owner. Those buildings are often under copyright, but it’s not a copyright infringement to take a photo of the building.
How and where can I use my street images?
This is where Nick talks about using your photos for commercial purposes. This term is not strictly defined and its shades vary depending on the country. But, generally speaking, commercial use is “promotion of a product, service or brand,” and you can extend that to the promotion of your own business. Now, how can you use your street photos?
Again, generally speaking, if you throw an exhibition of your work, that’s a part of your own artistic practice and that’s ok. If you want to sell prints from that exhibition, or copies of a photo book, generally speaking – you’re allowed to do that too if your photos were taken in public. But if you want to use photos to promote that particular exhibition or book, then the boundaries get a bit blurry, and you need to think more carefully about it.
What about GDPR?
GDPR stands for General Data Protection Regulation, and many street photographers wonder if it has an impact on their photography. Nick explains that, for a photo of a person to be classified as personal data, it needs to be accompanied by some other form of personal data. A photo of a human without the description or tags that give any clue of their identity simply shows an anonymous person.
Remember that the GDPR has two exceptions when it comes to photography: the artistic use exception and the journalistic use exception. You can read more about it here.
What is a model release and when do I need one?
If you’re taking photos and want to use them commercially, you need to get permission, and it needs to be written. There are two types of model release you can get: a proper contractual model release, and a consent form. Nick recommends getting the first one as often as you can, as it provides a contract between you and your subject and it’s, so to say, more robust than a consent form. As for the consent form, it can be revoked and cause problems for you as the photographer.
What about Germany?
Nick notes that the GDPR is pretty much uniform across the EU. However, Germany has a stricter privacy law, which may affect how images can be used. The same goes for France, so if you live, work or take photos in these countries, it’s probably good to dig a little deeper before using your photos commercially.
What about the USA?
The law in the USA is a lot freer when it comes to taking photos in public, but note that there’s an important caveat to that: there are two levels of legislation in the States. There’s federal law, valid across all stated, and then you’ve got confusingly different state laws.
What should we do if confronted?
I’m sure that everyone who has ever taken photos in public has been confronted about it. People approach you and ask you to delete the photo, or if you’re really unlucky, they will even try and start a fight. So, how to avoid situations like this? Above everything else, be nice. Don’t be aggressive, stay calm, stay cool and explain that you haven’t done anything illegal (assuming that you took the photo in a public space).
You can take some time to explain to them why you do street photography and convince them that you won’t misuse their photo in any way. You can show them the photo if you want, but if they don’t like it, you’re kinda giving them an extra reason to ask you to delete it. And if they persist, perhaps it’s better to just delete the photo. You are right from a legal standpoint, but sometimes it’s just not worth it.
What Nick adds at the end is that you should always ask for the model release on the spot if you plan to use the photo commercially. It’s much easier than tracking the person down later.
What about ethics?
Sean takes over for the bit about the ethical side of street photography. Before we think whether we’re legally allowed to take a photo, we need to ask ourselves if we should take it. However, ethics aren’t as straightforward as the law. It’s a very subjective matter, very different between individuals. Sean gives you examples of some of his own ethical boundaries, but they should serve you only as inspiration. You should figure out your own, and they can be similar or very different from his.
- Don’t take photos of people in vulnerable situations – if someone is homeless, or passed out drunk in the street, Sean notes that he won’t take a recognizable photo of them.
- Don’t degrade anyone – don’t take unkind photos that will make someone look bad.
- Don’t sexualize people in your photos
- If someone asks you to delete the photo, just delete it; don’t argue about your legal rights.
Sean suggests that you sit down and think about your ethical code before you head out and start taking photos. Because, you know, it’s not just about complying with the law, it’s also about respecting other people.