Venturing out onto the streets with your camera can be an intimidating prospect. Beyond the anxiety that people often feel about photographing strangers (or even being observed by strangers while shooting), many photographers aren’t quite sure what their rights and responsibilities are when engaging in street photography. While specific regulations vary nationwide, let’s take a look at some general standards for street photography in the United States.
1. Model releases are generally not required…
This is one of the biggest misconceptions about what is required when photographing people. Granted, it never hurts to obtain a release, and if you intend to use or license your image commercially, then it’s much easier to get a model release immediately before or after photographing a subject than it is to try to track down a stranger for a waiver after the fact. However, simply photographing a person in public view — including children and law enforcement officials — does not require either a model release or expressed consent.
2. … but use common sense.
There are certain exceptions to the above generalization, most of them related to a person’s “reasonable expectation of privacy.” For example, if you’re shooting from a public street into someone’s bedroom or bathroom window, you may be crossing an ethical and even legal line. Shooting under public bathroom stalls or up the skirts of passersby is also likely to get you into trouble. Texas even has an “Improper Photography” statute that makes it a felony to photograph a subject “without the other person’s consent … and with intent to arouse or gratify the sexual desire of any person.”
If someone waves you off when you try to photograph him or her, you may be well within your legal rights to take the shot, but ask yourself if it’s worth the verbal or even physical altercation that it may yield. Confrontation aside, I’d always advise being respectful and considerate towards your subjects, and if they express that they’d rather not be photographed, I’d suggest simply moving on.
3. Your rights as a photographer are broadest in public places.
For the most part, that means that as long as your shooting position is on public ground, you can photograph whatever you wish; this includes subjects situated on private property but within public view, such as a couple sitting on a restaurant patio that you can view from the street or the man in the image below, who is taking a smoke break on his employer’s back step. Similarly, contrary to popular belief, you do not need to obtain parental or guardian consent to photograph children on or visible from public property.
4. Just because a property is open to the public doesn’t make it public property.
Keep in mind that locations often thought of as “public,” such as shopping malls, amusement parks, theaters, and performance arenas may be subject to restrictions imposed by property owners once you enter onto their property. You are legally obligated to comply with property owners’ requests (or that of their agents, such as an employee or security guard) to cease photography or even to vacate the premises.
Military bases, crime scenes, airports, museums, energy installations, courthouses, public hospitals, and certain government facilities — while technically property owned by taxpayers — may also be physically (and sometimes photographically) off limits to photographers or subject to significant limitations for security, privacy, or logistical reasons. While there are typically signs present advising as to whether photography (or your presence) is permissible in such locations, if you have any uncertainty, do your homework or ask for permission directly before you make plans to shoot there.
5. There may be restrictions on photography that interferes with others’ enjoyment or use of a public area.
For example, even broadly accessible public areas — such as public streets and sidewalks — may be subject to restrictions on the use of certain equipment, particularly tripods, supplemental lighting, reflectors, and similar. If your setup is likely to disrupt the general flow of traffic, interfere with administrative activities, or cause a safety hazard, there’s a good chance that you need a permit to conduct your photography as planned. In particular, I’d suggest checking policies and regulations for high traffic areas such as subway systems, train stations, urban bridges and roadways, and protected or historical sites (including some parks and preserves).
In Washington DC, for example, photography is permitted but tripods are prohibited on the Capitol grounds, national memorials, most Smithsonian museums, and the Metro system (other than the Pentagon station, where photography is prohibited entirely).
6. Concerned parties have the right to approach you and inquire about your activity.
If confronted, be calm, respectful, and prepared to explain yourself. We live in a relatively fearful society, particularly post 9/11. Accept that most approaches – whether they come from a private citizen or a law enforcement officer – are probably coming from an honest place of fear, defensiveness, or concern. Confidently and honestly explain to those who ask about your activity that you are a professional photographer, a photographer taking part in a photo walk, or a photography student completing an assignment (even if it is self-assigned). Any one of these explanations is very likely to defuse the situation.
If you are advised that your activity (or use of equipment) is prohibited, feel free to respectfully ask for clarification as to the relevant policy, regulation, or statute and its terms. Broadly speaking, private citizens may not detain unless they have witnessed a felony, and law enforcement officials may detain only if they have reasonable suspicion of criminal activity afoot. Neither private citizens nor law enforcement officials have the authority to require that you delete your photographs or relinquish your equipment (including film or memory cards) except when acting in accordance with a court order or in conducting of an arrest.
7. You are allowed to display and even sell the images that you’ve photographed.
This is another point people tend to get hung up on. If you had the right to photograph a subject or scene, generally speaking, you also have the authority to display the photograph as an illustration of art or news – and that includes showing those images on your blog, in print, in news media, and in your photography portfolio (print or online). Indeed, you can even sell prints or digital copies of your street photography. Things start to get more complicated when “commercial use” (typically tied to advertising) comes into play, which is the reason why stock agencies that license images for both personal and commercial use tend to require a model release for any photos that they agree to manage which contain a personally identifiable individual. If you are in business, this may also become relevant to you as you put together your own promotional materials, in which case you will need to ask yourself if your image of an identifiable subject suggests some sort of endorsement, advocacy, or sponsorship of your work — or whether the inclusion of the subject is simply a matter of illustrating your art.
Disclaimer: This article does not constitute legal advice, nor does it establish an attorney-client relationship. The information contained herein is no substitute for legal advice from an attorney licensed in your state and may or may not be applicable to your specific situation. You are strongly encouraged to consult with local counsel to discuss your individual circumstances.
Sarah Wilkerson, Colorado
CEO, CMU Instructor
website | facebook | twitter | pinterest | instagram | mentoring | ask a pro
Sarah currently resides in Colorado Springs with her Army JAG husband, three sons, two dogs, and a baby on the way. When asked how she got into photography, she replied, “My husband had deployed 10 days after our first baby was born, and I realized a few months into the deployment that I needed a way both to document the milestones for him and to keep myself busy. I bought a DSLR in 2006 and found quickly that it appealed to my right brain desire to create and express myself + my left brain obsession with technology and precision.” Sarah shoots with a Nikon D4 and particularly enjoys tilt-shift and atmospheric black and white work. Gifted in teaching, she instructs CMU’s upper level composition courses (Elements of Design, Composition and Creativity, and Story and Vision). A former attorney, Sarah loves research and writing and enjoys lattes, mojitos, flip flops, and reality tv.
Thank you Sarah for this incredible insight! What great information to read right before the second annual ClickinWalk this coming weekend! Will you be joining us at your local ClickinWalk? There’s still time to register and there are some great prizes up for grabs. Visit here to register for the ClickinWalk!