Selling Street Photography
Something that I've often wondered about for the past little while is how professional street photographers, or even amateurs for that matter, get away with publishing books, doing gallery exhibits, etc. when they don't have a persons permission to use their photo for money (maybe the street photographer likes more candid looks).
I realize the laws are different in each and every country, but the general consensus seems to be that you may take someone's picture in a public location, or from a public location, without their permission, provided it is for non-commercial use. So how does Elliott Erwitt and Fred Herzog and others get away with publishing (and of course selling) photos containing candid street photos? What about Vivian Maier? Surely you can't know for sure whether or not she gained permission to take people's photos (and most of them appear as though she didn't), so how can you legally publish them in a book and, of course, turn a profit?
And what about galleries? I know there is huge variability with that, as the photos could be donated, for example. But what about if the artist gains money from a gallery exhibition (for example, a portion of admission tickets sold)?
And of course there are straight prints that I've seen be sold or for sale (more by amateurs than professionals, though) that have people in them as the main subject. What about those? How can those prints legally be sold without prior consent from the subject of the photo?
One reference that may be of interest (for those in the US):
The way I understand it, here in the USA, is that commercial use is when a photo is sold to to say Ford for use in a brochure or ad. This type of work requires releases.
If the photo is sold as art though, it's not "commercial". No release needed.
The other concept in play is that when "we" are in a public space our eyes cannot trespass, everything we can see is fair game. If someone wants privacy it's up to them to fence "us" out.
If I step off the sidewalk onto your lawn though the rules change.
Mark Barendt, Ignacio, CO
My aspiration of late is to become more Bohemian; "a person with artistic or intellectual tendencies, who lives and acts with no regard for conventional rules of behavior."
Mark is essentially correct. In a public space there can be no expectation of privacy, no permission required to snap away. Street photography sold as prints or in books is not considered commercial, it is considered editorial/artistic which is enough CYA for most street photography. It's when you sell the images for stock or advertising (or other "non" editiorial or artistic use) that model release is required if there's any one recognizable in the photograph.
Brian's link is spot on.
Of course IANAL, YMMV and all of this really only applies in the United States. Other countries may have different rules.
When you enter the public sphere, you give up your right to privacy. 'nuff said.
However, when you add an editorial to the photo and sell it (in a story, article or ad), you adding libel attributes to that individual and you would be up against some legal implications. As the photos stand alone, it's all fine and good. Shoot away.
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Well, I realize you should not expect privacy in a public space. I mentioned that in the original post. That's interesting though that a book or exhibition or print for sale (technically commercial, as you are gaining money from it) is considered art (and rightly so) and thus considered something different. But that's the U.S. What about Canada or Western Europe?
They don't get away with it as it's not illegal (same in the UK as the US).
Strictly speaking, in Canada the law will vary from province to province, because the rights involved fall under provincial jurisdiction.
Originally Posted by h.v.
Practically speaking, the situation in all the common-law provinces is substantially the same - use in a photographic art book or exhibition does not require a model release, because you are not appropriating any commercial interest from the people who are subjects of the photos.
It has nothing to do with whether or not you are selling a book - it is only related to the use you are making of the content of the image. If you are using the image to advertise something, then the subjects of the photo appear to be contributing to that purpose, and are therefore entitled to a commercial reward.
The situation may be different in Quebec. There is legislation in that province that protects rights of privacy in a way that makes it advisable to try to obtain a model release for published street photography.
“Photography is a complex and fluid medium, and its many factors are not applied in simple sequence. Rather, the process may be likened to the art of the juggler in keeping many balls in the air at one time!”
Ansel Adams, from the introduction to The Negative - The New Ansel Adams Photography Series / Book 2
Before attempting to sell street photography I would take some professional legal advice.