Privacy

People, Publicity & Photography Law

A FREE Online Guide
to Answer your Model Questions

Welcome

Hi. Thanks for visiting this guide to privacy and publicity.

I hear from many photographers who want to abide by privacy law — they just don’t know what the law is. So I’ve compiled some research into this guide. I hope you find what you seek, but, if not, just add a comment below. We’ll learn together!

Andrew Hudson


By Andrew Hudson Published: September 4, 2012 Updated: December 5, 2013

DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.

“What are the legal issues when it comes to taking photographs of people?”

People have the “right to privacy” which is often considered as a right to be left alone when removed from the public view. From a photographer’s perspective, this means that, if you want to:

Take a Photo

  • You can’t photograph people when they’re out of public view and in a private area, such as in a bedroom, changing room, bathroom, doctor’s office, etc. People are permitted a “reasonable expectation of privacy.”
  • You can photograph people who are openly in public view, for example, on the street, on the beach, in a park.

Sell or Publish a Photo

  • You’ll need a signed model release if the use is commercial, such as FOR an advert or the cover of a product. This includes celebrities, even though they’re “public” figures and even if you photographed them in a public place. (Editorial, factual, newsworthy purposes are OK).
  • The display of the photo can’t be maliciously untrue, or humiliate, ridicule, or reveal embarrassing and personal facts about a non-newsworthy person.

Introduction to Privacy

If you’re going to photograph or publish photos of people, you should be mindful of the “right to privacy.” This refers to a body of common law designed to protect people and includes such delightful terms as “invasion of privacy", “right to publicity,” “defamation” and “libel.”

You can be sued by someone if they feel your photo damaged them financially or personally. We don’t want to get sued, so let’s understand the law.

History

Privacy law, in the U.S. and England, is “common law.” That means it isn’t written down as a statute by legislators (that’s “statutory law”) but follows previous rulings (“precedents”) made by judges.

Common law is also known as “tort” law, since it is created by the filing of a “tort,” not a tasty cake but a civil wrong, from the French avoir tort, “to be wrong.” Because of this, there is not a single law to abide by but many rulings, or precendents, to be aware of.

The closest statute in the U.S. is the Fourth Amendment, which gave people the right:

“to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizure.”

Originally, that applied only to the government, but it was extended through common law following a Harvard Law Review article in 1890 entitled “The Right To Privacy.”

Thus, there is no actual, singular, defined “right to privacy.” Rather, this is a legal term referring to a body of tort law which allows people to be left alone.

The Right to Privacy

There are four categories of privacy:

  1. Solitude
  2. Private Facts
  3. False Light (includes “defamation” and “libel”)
  4. Identity (includes “right of publicity”)

1. Solitude

Intrusion of solitude. Home, seclusion, private place, a place out of public view, reasonable expectation of privacy. similar to trespass if the intrusion would be highly offensive to a reasonable person.

Dressing rooms, restrooms, medical facilities, inside their homes.

“One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person.”
—Restatement (Second) of Torts, 652B, American Law Institute.

“If the subject of the photograph has no reasonable expectation of privacy, then no invasion of privacy is possible. Photographs taken in public places generally are not actionable. Photos of crimes, arrests and accidents are usually considered newsworthy and immune from privacy claims.”
—Photographers’ Guide to Privacy, by the Reporters Committee for Freedom of the Press.

2. Private Facts

Public Disclosure of Private and Embarrassing Factspublic disclosures of embarrassing private facts. reasonable expectation of privacy, e.g out of public view and in a private place. rewrite: would be highly offensive to a reasonable person, and is not a legitimate concern to the public.

3. False Light

Publicity which places a person in a false light. using a photo out of context can imply that a person in the photo was doing something they weren’t. usually not the photo itself but the caption, text or presentation of the photo. similar to libel. a misleading or offensive display of someone). This is defamation, an aspect of which is libel. Libel includes a non-truthful photo, or display of a photo, which ridicules, humiliates, or provokes contempt for, a living person or company. In the case of a public figure, libel is narrowed to malice and reckless disregard for the truth. First Amendment be provide a “constitutional override, permitting free speach for the public benefit.

4. Identity

Appropriation of identity. Advertising. appropriation of a person’s name or likeness Property Rights. If people paid admission, then it can be an invasion of privacy to publish photographs. Appropriation of identity (using a person’s image or name without consent for commercial gain). The last one has become the “Right of Publicity", as celebrities and sports teams use the law to control publicity.

Corporations and Invasion of Privacy

“Except for the appropriation of one’s name or likeness, an action for invasion of privacy can be maintained only by a living individual whose privacy is invaded.”
— Restatement of Torts, Second, §6521 (1981), American Law Institute

“A corporation, partnership or unincorporated association has no personal right of privacy. It has therefore no cause of action for any of the four forms of invasion (of privacy, including intrusion upon seclusion).”
— Restatement of Torts, Second, Comment (c), American Law Institute


I haven’t finished the following:

Street Photography

U.S.: Nussenzweig v. diCorcia is a decision by the New York Supreme Court in New York County, holding that a photographer could display, publish, and sell (at least in limited editions) street photography without the consent of the subjects of those photographs.

Privacy: Photographer’s Guide to Privacy, Reporters Committee for Freedom of the Press

Next page: What are photo privacy laws?

Comments

Comments


Reply by Isabel

April 1, 2016

Hello! I am the general manager of a gym. We want to create social media sites to expand our influence and grow our following. I see some local gyms photograph and post personal info of their members/clients on social media sites, and I know that larger corporations (LA Fitness, LifeTime) don’t do this and actually have laws against it. Are the local gyms breaking the law? For my gym, would it be enough to post on or near the door, “By entering and making use of this facility you grant us the right to photograph/video you” or would each individual need to sign or not sign a waiver? Thanks!


Reply by Andrew Hudson, PhotoSecrets

April 4, 2016

Hi Isabel,

You should consult a local attorney. I am not an attorney, and the following is not legal advice, just my personal thoughts.

I am not aware of a law that prevents a gym from posting photos online of adults in public classes. “Personal info“ is a different matter, if the info is financial (e.g. a Social Security Number) or embarrassing. That said, you never want to upset your customers, so it is probably a good idea to request permission from people that you feature (particularly if for advertising purposes), or blur their faces in Photoshop before posting.

As for posting a notice saying “By entering...”, although this might provide some notice to your clients, this “negative consent” might not hold up in court. Better would be a positive consent, where each person affirms (or declines) to opt-in by signing a waiver. This could potentially be part of your membership agreement.

The law on this issue may be murky, and may depend upon your location, so consult a local attorney for specific advice.


Reply by Marie

November 10, 2015

I would like to produce a book to make people aware of the homeless situation in America. Can I take pictures of homeless people, and insert them into a book?


Reply by Andrew Hudson, PhotoSecrets

January 11, 2016

Hi Marie:

Good question. I should write an article about street photography.

In the U.S., I believe you do not need permission to photograph people in the street, or publish such photos in a book. Privacy laws generally protect people in private places, but there is generally no expectation of privacy when someone can be viewed from a public place such as a street.

“In many countries (especially English-speaking ones) the subject’s consent is not usually needed for publishing a straightforward photograph of an identifiable individual taken in a public place.”

Wikimedia

“Yes, you can photograph strangers in public places, unless you do it to such an extent and in such a way that you become a harasser or nuisance to the public instead of a photographer.”

ASMP

Also see:


Reply by Anonymous

August 24, 2015

So what if someone in public verbally tells a photographer they don’t want to be photographed but the photographer continues to photograph that person without consent?


Reply by Andrew Hudson, PhotoSecrets

January 12, 2016

Good question.

Generally, a person in a public place can be photographed. So the first step would be to walk away from the photographer, or hide, or move to a private place.

If the photographer continues and becomes a nuisance, this might be considered “civil harassment.” This is state law. In California, “harassment” is:

Unlawful violence, like assault or battery or stalking, OR

A credible threat of violence, AND

The violence or threats seriously scare, annoy, or harass someone and there is no valid reason for it.


Reply by Cathy.humphrey101@gmail.com

May 23, 2015

I very firmly believe that celebrities have the absolute right to privacy when in public. Just because they are "public figures", they are no more and no less human than the general public. What can we do to amend the right to privacy laws to make them less vague and much more specific? Everybody that walks this earth has that right as a fellow human being, if not the god given right.

(Depending on your belief system.)


Reply by Andrew Hudson, PhotoSecrets

May 29, 2015

Hi Cathy,

In the U.S., privacy laws are state laws, so to change privacy protection talk to your state’s legislators.


Reply by Nenek

February 7, 2015

I believe you should be able to use privacy laws to have resonable use of your families gravestone picture someone else took. Just because they volunteered to take pictures of gravestones should not give them ownership rights to finding and completing your family ancestory. Volunteer is a key word, doesnÆt that mean something. I should have a claim on my families stones. Or they should make gravestone pics public domain and no one should be allowed to copyright these, or make a profit off of this.


Reply by Andrew Hudson, PhotoSecrets

March 6, 2015

Hi Nenek,

Since gravestones are, by intent, placed in a public view, they can be photographed. A photographer owns the copyright to a photo of a gravestone and they can sell that photo. But you are not required to buy the photos, and you are free to take your own photo. Similarly, ancestry information are public facts and are free for anyone to use.


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