Candid shots & privacy

[neill78]

Recently I've been practicing taking some candid b&w shots and I have been really pleased at the results. I would like to post some here, but...

As a linguist, I have to be very careful about the audio/video data I collect and use. The rules of academia are extremely strict when it comes to publicly showing data when it could reveal a person's identity. This is always true even if the subject is in a public place, because they are treated as human subjects in an experiment. Because of my linguistics background I find that I generally avoid shooting people unless they know me or know in advance that I will be taking their photo. Unfortunately I have lost a lot of great photo opportunities because of my reluctance to shoot.

So far most of the subjects I've captured have been acquaintances, so I could easily ask their permission to display them, but what do you do when it's someone you don't know? I see many pictures here of children, adults, people in foreign countries etc going about their daily lives, and I want to ask them, "how do you feel about your photo appearing here?"

When/before you take photos of people on the street, do you or should you ask their permission? Do you or should you ask the subject permission to "publish" the images on the web?

Advice/experiences are appreciated.

Neill

[gurin]

This ought to be interesting, as a historian a have the same qualms as you do. However this is an international forum and different rules apply in different countries.

As I read the Swedish rules I can take a picture anywhere of anyone even through their bedroom window (excepted are certain military installations). The owner of a property can forbid me taking pictures from his property but not of it from another’s, hence the bedroom window example. The rules for publishing are altogether another matter. It depends on the media and on the intent and use. The strictest rules apply to the internet. As I read those rules I am not allowed to publish a candid shot without asking the person.

In practise nobody seems to care. A strict interpretation of the rules would outlaw nearly every Swedish family album on the internet.

gurin

[ssim]

I have very mixed feelings about this whole subject. Should you be able to snap a shot of someone without their permission and should you be able to display this shot publicly on the net. If all one is doing is shooting and sharing (ie making no monetary gain) then the world is theirs. Would I want a picture of my daughter on a beach floating around the net, no. I do try to take that same approach when I am shooting.

Now when it comes time to try and sell those photos is it a whole different game. If anyone has ever tried to market some of their photos to a stock agency that has identifiable persons in them you would know that they will almost always require a model release. There is the out that you can try and classify your shot as editorial content and those do not require releases. This is how newspapers and magazines get around this rule, the photos they publish are editorial content.

I certainly try to keep all of this in mind when I am shooting now. I will normally ask permission to shoot a person but there is a problem with this. It takes away from the moment, the person is now posing and is not natural. To counter this I have taken the shots and then approached the person to show them and ask their blessings to keep them. If the shot looks like it is a good one I will sometimes ask them to sign a model release. It is surprising how many people have no issues doing this.

There are photographers that take things to the extreme. It is their god given right to shoot everything and anything and don't question me why. If someone does not want their picture taken, they should oblige and move on. This has been a long debate on other forums I have belonged to. The law may be on their side but there is a morality issue here as well. You will find some street photography in my galleries but not very much. I have moved away from this as it sort of a useless avenue for me now. The images are nice to look at, nice to display but I can't use them for anything. These days I seem to shooting only things that I know that I can sell or image of people that I know I can get a release.

[First Light]

Greetings,

I'm not a lawyer but this is my understanding. In America there are two primary things to consider plus a third moral issue.

The two primaries are:

1. Where is the photo taken and is there an expectation of privacy.
2. How will the photo be used.

Generally, photos can be taken in any public place as long as there is no expectation of privacy. For example, you can photograph anyone walking down a sidewalk but you can't photograph them using a public bathroom even though both are public places.

Generally, people "own" the commercial use of their images except for news stories and educational (classroom) purposes. For example, a photojournalist can take your picture in a public space and publish it in a newspaper without paying you or getting your permission. But a photographer cannot sell your picture in a photo database without getting your permission.

This means that you can usually post a candid photo on the internet if you are not trying to make money from it and you are not breaking other laws (like defamation).

Now for the moral issue. It may be legally okay to take a photograph of a child in a public space but the parents may not want you to. Should you do it because you can? Or, should you comply with the parent's wishes? In most cases, the morally correct action would be to comply with the parents.

Many people confuse legal issues with moral issues---especially in our post 9/11 age. In an ideal world, they would be the same. But in the real world, they seldom are. For example, an ideal law would be "love your neighbor". Can you imagine our legal system trying to apply that one?

[matthew]

As a linguist, I have to be very careful about the audio/video data I collect and use. The rules of academia are extremely strict when it comes to publicly showing data when it could reveal a person's identity.

You have an excellent foundation. This is one subject where the jurisdiction makes all the difference. I will point out, though, that you can take any photo you like. Publishing it is another story.

In Canada, the case law is more restrictive than that of the USA.

Aubry v. Editions Vice-Versa is a case that was decided by the Supreme Court. A photographer had published a photo in the magazine Vice-Versa of an identifiable person in a public place. No model release was signed, and no consent was given. The court found in favour of the individual, and the magazine had to pay damages.

The July 2007 edition of Photo Life has a three-page write up of the case. It's what I'm reading right now, but you can also find information on-line.

Essentially, you need a model release unless:
- The subject can not be identified.
- The subject is a public person, or an unknown person performing a high-profile role in a matter falling within the public domain.
- A person in the photograph is included incidentally / not the main subject, i.e., in a crowd.

The court also found that the difficulty of obtaining consent is not a defense. If you take a photo of a person with a telephoto lens, you're in for a long walk. Being in a public place also does not remove the need for consent; someone who is recognizable and the subject of a photograph in a crowded public area still needs to provide consent, while the people in the crowd who are incidentally included do not.

Remember that this is a matter of civil law. Someone would have to see the photo, recognize themselves, and then sue you for damage. But as Claire Swire can tell you, e-mail can travel a long way, and once something's on the internet it may be immortal. Nobody can sue you -- or at least, they won't win -- if you get and keep a signed release.

disclaimer: I'm not a lawyer, and have read slightly different interpretations of the Aubry decisions. This is simply how I inform my shooting. Other opinions will vary.

[Kyle Jones]

I never ask for permission. Doing so would ruin the shot I was trying to take, so the permission obtained would be worthless. In many cases I'm shooting a public scene with multiple people in it and trying to ask them all would be a larger exercise in futility. I shoot for artistic purposes, not for advertising stock, so I'm in the clear at least in the U.S.

[Hokuto]

I never ask for permission. Doing so would ruin the shot I was trying to take,.

I basically agree. If the shot you're taking requires prior permission, it's not the same shot anymore. I guess we're pretty lucky here in Japan, since few people are very concerned about model releases--it seems.

[windsprite]

For right or wrong, my policy in this case is, "It's easier to ask for forgiveness than it is for permission."

[neill78]

Wow this post generated a lot of discussion. Thanks, everyone, for your feedback. Sorry I didn't respond sooner, but I was out of town and on dial-up, and it literally took 10+ minutes to load the site, so I just gave up.

Looking over the posts, it looks like this is still a grey area. I guess there isn't a "photographers' code of conduct" that we can refer to. At least things don't sound QUITE as restrictive as what I have to go through in linguistics..

Neill

[Blu-by-u]

So in other words, if I happen to be in Malibu beach and from my hotel window I see Ms Jolie running around on the beach, I shoot her with the 50-500 at full zoom and I cannot post it here without her permission...but if it's some unknown beauty sun bathing on the beach, I can...yes or no?

[Ox Online]

if I happen to be in Malibu beach and from my hotel window I see Ms Jolie running around on the beach, I shoot her with the 50-500 at full zoom and I cannot post it here without her permission...

But sell it to a celebrity mag for 1000 bucks and its news!?

[Don Baldwinson]

A month ago on a lonely beach, a fisherman was walking towards me, me towards him. I had my 7-14+E-330 at waist level, and really wanted to snap him, but I just could not do it! Just after I walked past, I went back to him and asked permission. Sure he said, so I went back up the beach. He stopped and posed! I beckoned him on, and took the shot, but everything was wrong about it. We then had a long and interesting talk about the recent storm and parted as friends.
I wish I had taken the candid shot first. I wonder if we would still have talked and parted friends?
I don't think I have the arrogance to shoot people without asking, so I will never succeed in that side of photography,
Don

[First Light]

... I don't think I have the arrogance to shoot people without asking, so I will never succeed in that side of photography,

Hi Don,

I'm like you when it comes to candids of strangers who do not expect to have their picture taken---especially if I'm working with a moderate or short focus distance. But this is not always the case.

I shoot tens of thousands of candids each year and they are almost all at events where everyone knows that candid photos are being taken. Part of my tactic is to simply melt into the background as much as possible so people aren't aware when I'm taking their picture so I can get a natural unposed look. You may do well in a similar environment.

[mckennma]

I had a women in London freak out when I was taking a picture of a building she was in front of. She did not want to be in the picture. I waited for her to move away and took it.

[smokeyjoe]

It's all about respect, and consideration.

I don't photograph anyone without their permission. In fact, I rarely shoot people at all.
I like the interpretation of the Canadian laws above; I am, after all, a Canadian.

Seems reasonable to me.

Over the last few decades, the public has become aware of the power of photography. They've wised up to the fact that they can be made to look very unflattering, or caught in situations that they wouldn't like to be in. Subsequently, many are reluctant to have their picture taken.

Hell, I don't like having MY picture taken, unless someone asks first. I've gone so far as to throw visitors out of my place of employment who have dis-respected other individuals rights to privacy.

Sure there are some people out there who'll tell you that anyone in a public place is fair game, but those are also the shooters that have ruined things for everyone else, by raising the public's suspicion of anyone with a camera -particularly a DSLR, in their hands.

[Don Baldwinson]

Hi Don,

I'm like you when it comes to candids of strangers who do not expect to have their picture taken---especially if I'm working with a moderate or short focus distance. But this is not always the case.

I shoot tens of thousands of candids each year and they are almost all at events where everyone knows that candid photos are being taken. Part of my tactic is to simply melt into the background as much as possible so people aren't aware when I'm taking their picture so I can get a natural unposed look. You may do well in a similar environment.

Hi FL,
It's a tricky one. Have you ever been abused by a candid subject? Which is your favourite lens for shooting when blended into the crowd
Cheers,
Don

[First Light]

Hi Don,

My favorite lens for candids is the ZD 150mm f2.0 because of its "reach" and dreamy bokeh at f2.0 that puts nearby portions of the scene out of focus. The latter quality helps isolate the subject from their surroundings since the perspective will often be "flat".

But sometimes, I'm unable to use a "sneaker zoom" with a prime lens like the 150mm and then my second most oft used lens is the ZD 50-200mm f2.8-3.5 (used mostly at the "long" end).

If I'm feeling extra playful and think the subjects won't mind me working very close then I'll sometimes use the ZD 14-54mm at the wide end to get a funny perspective with proximity distortion. But I've rarely felt like the situation was "right" to allow this. Even people who know they're being photographed can get pretty squirrelly when you're "in their face" with a short focus distance.

[glenbarrington]

I have been a participant in some of the discussions on other forums and for the most part, few people agree with me. While I hate the fact that our culture appears to be deteriorating in this area from my perspective, it doesn't bother me to be at odds with everyone else. It has been my position that a good candid photographer doesn't have to resort to 'stealth' to get good candids.

A good candid shooter uses his camera openly. he doesn't appologize for using it, and if he thinks he's gotten a good one, he shows the photo to the subject and uses the force of his personality to get the subject's buy in on the photo. If the subject objects to having a photo taken, there is a moral obligation to NOT take the photo.

In candid event photography, pretty much the same rules apply in my mind. You use the camera in an open manner, but since it is an event, it is assumed that people expect to see cameras and you don't need to continually ask permission to shoot. However, I think if someone DID come up and object to their photo being taken, I would feel obligated to NOT take their photo or delete it from my media card. Pretending to delete a photo from media is about as low as a candid photographer can sink in my mind.

I think its ok to 'fade' into the background once you have made your presence known and have gotten at least an 'assumed' permission to shoot. (ie the camera can be clearly seen by the potential subjects and none of them object to its presence). After all, the purpose is to get good photos, it isn't to demonstrate how cool you look handling a camera. Anything less is not candid photography, it is stealing an image, in my opinion.

Celebrity photos are a gray area in my mind. I personally would be uncomfortable taking a celebrity's photo using stealth and would not do so. However, the system IS set up the way it is set up and celebrities DO benefit from the publicity generated by such photos, and relatively few people are drafted into a celebrity status. Those few who are unwilling celebrities are usually in the news for one reason or another and valid news photos are always OK in my mind. (Now, what makes a valid news photo is a different argument altogether!)

If you've got photos that you believe you couldn't have gotten without stealth, please don't show them to me. I don't believe you had a right to take them in the first place, so their 'quality' as a graphic image is irrelevant in my mind.

[First Light]

Hi Glen,

I think you may be talking about some other form of photograhy---not "candids". Candids require the subject to be unaware when the shot is taken so they will not pose or prepare for it. Candids are intended to capture the subject in a natural state. This requires the photographer to avoid attracting undue attention and avoid becoming a distraction.

This does not mean that the photographer must always conceal the fact that photos are being taken---candids are rarely done in a "Candid Camera" show type setup with hidden cameras and such. On the contrary (and as I described above), the vast majority of my candid assignments are with the full knowledge of the subjects.

For example, a company hires a candid photographer to shoot candids of its employees at the annual company picnic. The photographer is tasked with capturing the fun and joy of the occasion. This is a "tradition" and the photos are published in the company newsletter as a keepsake of the event. All the employees are aware of it and none of their images will be used commercially. In this case there is no requirement for the photographer to ask permission before or after the shots are taken. And if the photographer is "good" he/she will make every effort to blend into the scene so they can capture the event without the employees being aware when the shots are taken. There is no need for the "force of personality".

Furthermore, we're not talking about celebrity photos. This is not a paparazzi affair where photographers stalk people and try to get salacious shots. Again, you're confusing what candid photography is by lumping other forms of photography like celebrity photos in with it.

My guess is that 90% of the time that people get "upset", they misunderstand what is going on. Taking a few bad examples and trying to paint the genre of "candid photography" with the one brush is silly!!!

[Blu-by-u]

glen is right too in a way. Some photographers go around shooting candid shots of people in public without a care if the person mind or not. But if the photographer is hired as in First Light's example, don't think permission is required but that does not mean that the photographer can use those pictures on his own without permission from the person or company who hired him.

Think same applies to being a wedding photographer or any other even photographer. As long as one is paid or hired in some way, the rights to use those photographs belongs to the hirer not the hired.

So lets say I am not hired but I am shooting for the sake of art...do I have to ask permission then? Say I am touring Turkey and I shoot where everyone is shooting..I catch a few faces in there. Do I have to ask them permission before I post those pictures here or any where else?

[glenbarrington]

The word 'candid' means 'open' and 'honest'. It doesn't mean 'hidden'. See what the Mirriam-Webster online dictionary has to say about the word here:

http://www.m-w.com/dictionary/Candid

In my opinion, a good candids photographer learns to take himself out of the environment by force of personality and people skills. If you look at the work of the great candid photographers, virtually all of their work was done out in the open. Sometimes, people are actually staring into the camera, yet they are clearly not posed. They know the photographer is there, but they don't care. Other photos ARE posed, but the reality the photo exposes transcends the pose and reveals depth that the subject may not even suspect (I'm thinking of Mary Ellen Mark, here). I guess you could argue those aren't truely candid photos, but the line between candid and . . . er . . 'not candid' is not clearly defined and the body of work that MEM produced was on the whole, candid in nature.

My whole point is that the photographer must treat the subject fairly and with respect. And treating people like a photo-op isn't respectful or fair. (The fact that we even HAVE a concept like 'photo-op' is an abomination in my eyes.)

I understand that my position irritates some photographers, though I don't fully understand why. Photography, the whole of art, actually, is all about people. If we start treating people like assets available for exploitation, I think we have to ask ourselves if we are truely artists, or just another bunch of yahoos out to get what we can while the gettin' is good.