Can I sell my photos of people?
September 13, 2012 10:39 AM   Subscribe

Can I sell photos I took of people on the street who didn't know they were being photographed?

I have a bunch of photos, some of people, some of other things with people in the background, and sometimes I think I might want to try to take framed prints of them around to the many coffeehouses in my neighborhood for display and possible sales. (I see art for sale in the coffeehouses quite a bit).

What are the issues with selling a stranger's image? I never told the people I was taking their pictures, certainly never got releases, etc.

What do people do? (What did e.g. WeeGee and all the rest of those people do? Did Diane Arbus get releases?)
posted by DMelanogaster to Work & Money (15 answers total) 4 users marked this as a favorite
Where are you?
posted by Hollywood Upstairs Medical College at 10:42 AM on September 13, 2012

When do I need a release? (assumes you are in the US)
posted by jquinby at 10:43 AM on September 13, 2012

I would take a look at the laws regarding the privacy torts in your area - pay attention to the "appropriation of name or likeness" tort.

You could also take a look at this FAQ, which suggests that art prints are okay without a release, but I personally would not rely on legal information from the internet without a citation to the law.
posted by insectosaurus at 10:46 AM on September 13, 2012

How recognizable are the people? If you're talking, "a sea people looking up at fireworks" that's going to be very different from pictures that is unmistakeably of a handful of individuals.
posted by Kid Charlemagne at 10:51 AM on September 13, 2012

Best answer: On the street, there's no expectation of privacy, but you're running a risk of being sued or having someone ask for you to split your fee. Weegee was working press, and Diane Arbus got permission from her subjects.
posted by Ideefixe at 10:52 AM on September 13, 2012

Response by poster: I am in New York City, and the pictures I like the most are of people who are very recognizable. The series I'm most interested in displaying is called Ladies of the Gray Braid. These are photos of women each with her hair in an, um, gray braid. Some of these photos are from the back, but they're not nearly as interesting as seeing the whole face of a woman.

I will go to the links people have provided. Thanks.
posted by DMelanogaster at 10:55 AM on September 13, 2012

Perfectly legal in the UK, not so in France.

Under UK law where it gets iffy is if you use the image to show the subjects endorsing something, hence why stock agencies always require model releases.
posted by brilliantmistake at 10:57 AM on September 13, 2012

Best answer: IANAL, although I am a photographer that's tried to pay attention to this issue.

Nussenzweig v diCorcia is the most relevant court case I can think of. [On preview: darn you Lorin!]

Reasonable expectation of privacy is a big deal. This creates a distinction from a photo of someone on the street vs. a photo of someone taken into their house from the street. By going out in public I expose myself to the possibility that I will be seen and photographed by other people out in public. But if I'm at home I expect privacy, and even if you can get a photo of me through the window you're not legally able to do much with it.

The other big question here is "are you marketing a product or is this an advertisement?", basically using it commercially. Selling art is a commercial endeavour, to be sure, but here "using it commercially" moreso means marketing and advertising. If you are taking a "street photography" kind of photo and selling it as "look at the street photography kind of photo I took isn't it pretty", e. g. for the aesthetic value someone will give it when they buy it to display in their home, then you should be fine.

If someone is walking down the street with a coke and you take a photo of it and then sell it to Coca Cola and they use it in a print ad then you're in an entirely different ball game.

Here's my checklist:
1. Does the person have a reasonable expectation of privacy?
2. Am I selling this as an artwork intended for exhibition and display?

If your photo meets these criteria you should be good to go. You might get sued, like Philip-Lorca diCorcia, but the law and precedent are on your side and you'll be in the right.
posted by ztdavis at 11:24 AM on September 13, 2012 [3 favorites]

Since it is a civil matter, you can be sued and you will have to pay to hire a lawyer to defend your case. Maybe you'll win. Maybe not. Sometimes people don't care if they win, they just want to sue you because they don't like what you did, which in this case would be taking a photograph of them on the street and exhibiting it. Again, if you're not using their image to promote a product or ideology, they probably don't have a winnable case. That doesn't mean you don't have to pay your lawyer to tell the judge that you are pretty sure that you're in the realm of artistic expression or reportage.

It's always better to get a release.

Would it destroy your project to ask subjects in advance for permission? Really? Many people are more than willing to participate if you explain what the project is, and will happily pose as directed and sign appropriate release forms. Simply ask.

N.B. last year I photographed over a thousand people in public places, always asking for permission first, and getting a release form signed. Maybe half of the people weren't interested -- but half of them were. And I got release forms for every single one of them.
posted by seanmpuckett at 11:44 AM on September 13, 2012 [3 favorites]

On the street, there's no expectation of privacy

Privacy is an issue related to capturing the image. It is not the usage of the photo that is the issue, it is the taking of it at all. If someone had an expectation of privacy you would have violated it simply by taking the picture. The only way the selling of the image relates to that is that it provides proof that maybe they didn't have before. You might also increase your penalties if you sell, say, 100 copies rather than one. But the sale isn't the underlying offense there.

The issue of selling photos of other people is about their image rights. The issue is using it for trade or commercial purposes. Artistic purposes are typically okay, though there have been some recent decisions where you get into more fuzzy aspects - is that book cover art in and of itself or is it an ad for the book? Seems like this case says it's an ad at least in part so you need a release.

If you want more proper resources than some bozo on the internet you might consider Carolyn Wright's book which you can get on Amazon in dead tree or Kindle versions. Or look on her blog to get started.

My opinion, worth what you paid for it, is that you're okay here but you might be prepared for someone who isn't happy with it. And you could have an issue if any of those people are famous enough that their image has some marketable value; selling pictures of Amy Whoever at Zabars is different than pictures of Natalie Portman at Zabars.
posted by phearlez at 11:48 AM on September 13, 2012 [1 favorite]

I'm not sure what the laws are about this, and I suspect that they're different here than they are in New York, but I do know that to videorecord people, you have to inform them, so I wouldn't be surprised if there was a similar expectation about photographing them.

Personally, though, if someone was taking pictures of me without my knowledge or consent, and I found out about it, I'd be pretty pissed, whether I were in public at the time or not. If they tried to use or sell those images, I'd be infuriated, and I would do everything in my power to bring the shit down on their head. So that's something that you might want to think about.
posted by windykites at 1:06 PM on September 13, 2012 [4 favorites]

Best answer: Here, I will even give you my patter for approaching people on the street for photography, which was refined over and over to find a way to interrupt/approach people without seeming even slightly creepy, while interesting and engaging them with what you are doing.

You need to be reasonably well dressed and be obviously visible. Also holding your camera and/or your clipboard (which has release forms on it). This is important because you want to look like you are not shy or ashamed about what you are doing.

When someone comes near and is not obviously not looking at you then you say something very similar to this: "Excuse me, would you mind helping me with my art project?" Possible responses include ignoring you, saying "no", shaking their head, or just walking away.... you just let them go. Maybe say, "thanks anyway, have a great day." Note that it's important to mention art in your initial pitch otherwise people will think you're a charity suck or political canvasser and everyone hates these people.)

But because you've asked a question that does not have enough information to formulate a genuine response right away, people who are feeling open to happenstance will stop, because they cannot honestly answer your question -- they can't say yes or no, because they don't know what your art project is.

These people will say, "I don't know, tell me about your project!"

And now you have maybe three or four sentences to sell them your project, reinforcing up front that 1) it doesn't cost anything, 2) it will just take X minutes of their time right now, but most importantly that your project has artistic merit and that you think they would be perfect candidates for [whatever], and "would you be willing to help?"

If they balk, just thank them. If they ask questions, answer them. But try and gently get them to agree to helping you. Once they do, you then mention that, in order to protect everyone legally, you're asking everyone to sign a standard release form that states [for example] that you can use their photo for an artistic exhibition, but not to try and endorse a product. Show them the simple release form on a clipboard and welcome them to read it, and hand them a pen and then stand back.

You will probably lose a few more who don't want to sign anything. And there will be more questions. Maybe 20% of them will actually read the form thoroughly, most of the rest will skim it and then sign.

And then you do your thing with a willing volunteer who knows something about what you want and has already signed the appropriate legal framework to let you do whatever it is you need to do with your photos, and no one is going to be unpleasantly surprised by a lawsuit or a photograph of themselves on a coffeeshop wall.
posted by seanmpuckett at 3:18 PM on September 13, 2012 [5 favorites]

Response by poster: These are all great answers; thank you. What will get compromised is the candid nature of my photos. For example, I really like one of my photos that I took of a woman with a gray braid looking intently at craft materials for sale at an outside crafts fair; this image so beautifully captures the essence of the gray-braided-hippie-craftsperson.

I could never have taken a photo like that if the woman had signed a release and was now posing (even if she didn't think she was).

However, i don't want to get sued either. Ah, Art.
posted by DMelanogaster at 7:12 PM on September 13, 2012

You need to be careful about what you call your exhibition. Obviously you would not want to take pictures of women walking down the street and put them in an Exhibit "Streetwalkers" or worse "Ho's of New York". But less obvious is that some women may take great offense at being grouped together as "old hippy women of new york". So I don't know. Personally, if I had some really great photos like you describe, I might go back to that farmer's market and see if I could find the ladies and ask their permission to be in a group "shoppers at the farmer's market". (I know my grandma would have been angry if she were to be displayed as a "senior citizen" even when she was eighty!)
posted by cda at 8:56 AM on September 14, 2012

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