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When Is Permission Required?Q. I just read a question answered by you about model releases of people in public. I have wondered about the same question. My specialty is creating shots that evoke a strong mood, and I need a human element to make the photo successful. My question is, I always thought that the rule was, "if the person is recognizable in the photo" you need a release. Alot of times I have shot pictures of people afar off, or as a silhouette, or with their back to me (so no parent or other person could threaten to sue me because they saw their son or daughter's face in a book or magazine without their permission). How do you avoid this from happening? If I remember what you said, if the picture is used for a book or magazine or newspaper and isn't being used for advertising, then a release is not required. I know that it may not matter to the photobuyer, yet again, if the parent sees the picture, could this pose a problem for the photobuyer as well as for me?
A. Ken, you said it best: "If the picture is used for a book or magazine or newspaper and isn't being used for advertising, then a release is not required." This is thanks to our Freedom of the Press.
As you know, in the past – many regimes only let the public know what they (the ruling regime) wanted the public to hear. (Stalin, Hitler, Tojo, Mussolini, and more recently, Saddam). It's a convenient way to run a totalitarian government. But it isn't pleasant for those being ruled.
The wisdom of our forefathers was to recognize that despite how much it might hurt, we have to report (and display photographically) what is happening around us. And yes, it might hurt the mother of a child who is photographed in public beating up on a smaller kid, or a drunk strolling down the street, or two lovers on a park bench. Our Freedom of the Press protects us, and sometimes embarrasses us. As you know, that's the way it is in a democracy.
Most photographers who enter the field of editorial photography from a commercial background (fashion, corporate, aerial, real estate, food, photography and so on) are surprised that their new field, editorial photography, knows no restrictions.
It's up to the PUBLISHER of a photograph to decide whether the picture might not be acceptable to his/her public, whether that might be in New York, Alabama, or California – where each location might have a different cultural outlook on the same subject matter.
I've yet to hear of an editorial photographer being sued and losing the case on the kind of situations mentioned in the second paragraph above. Anyone can sue anyone. But smart lawyers know it's an uphill battle to try to win a Freedom of the Press case, let alone get any funds out of a freelance photographer. An attorney would always ask for a retainer first before taking on such a case.
The editorial photographer "greats" of the past, who have shown us what life was like during the roarin' 20's, the Great Depression, or the 60's, knew they had a mission: to show the world how they (the photographer) saw the world (Weltanschauung), leaving that as their legacy, and us to judge its merits.
As an editorial photographer, you have to overcome your timidity to photograph some things that might be reprehensible to you: mental wards, homelessness, or unpleasant political or military situations. As the man said, "If it were easy, everyone would be doing it."