The Laws Governing Photography
One of the most popular professions and hobbies in the world is photography. It would be difficult, if not impossible, for us to escape the camera’s lens throughout our lives. And now we are more likely than ever to wind up posted on the Internet somewhere, whether we want to be or not. Therefore, knowing your rights as a the subject of a photograph is as important as knowing your rights as a photographer.
Each state has its own privacy laws, either based on statute or common law. These laws, however, are evolving even as you read these words. Because no two situations are alike in the world of photography, the laws governing them center on the "reasonable expectations" of the person photographed. Hence it is important to understand what "reasonable expectations" means as a matter of law. Unfortunately, it is not reasonable to expect a photographer would not post your picture if you asked them not to, but it may help.
There are four principals or torts currently guiding privacy laws. It is, after all, your privacy which is violated, when you are the unknowing, unwilling, or misrepresented subject of a photo. These principals are false light, intrusion, misappropriation, and private facts.
As a general rule of thumb, anything which can be seen from a public platform, can be legally photographed. That includes you and it includes private trips in public settings! The caveat to false light is "context." Even when people are photographed in public, the "context" of the picture can have a negative impact. For example, an anti-abortion pregnant woman may find herself in an advertisement for abortion. In such a case, the context of the advertisement implies that the subject female is a candidate for abortion or favors abortion. In these instances, the law may protect her. Any time photographs are used to illustrate negative stories or controversial subjects, there is an inherent risk of violating someone’s rights.
On the other hand, persons who are in a private setting have a "reasonable expectation" of privacy. Therefore, photographs in these settings require consent (preferably written). If the subject of the photo has no reasonable expectation to privacy, then intrusion is not possible. Intrusion is simply trespassing, or stated another way, invasion. Seclusion may also be indicative of a private setting. If a photographer is not allowed on the private premise or is ordered to leave, then he or she is guilty of intrusion.
Intrusion is so important in the eyes of the law, that numerous states have banned the covert use of cameras in private settings. Bear in mind, that even consent to enter a private setting does not guarantee the right to photograph. Also be aware that public officials or figures, or those otherwise involved in the public interest by profession, have less rights to privacy than do private citizens.
When a photographer makes a private life matter a public matter, the photographer can be liable for invasion of privacy, but usually only if the photograph would be highly offensive to a reasonable person and is not of some legitimate concern to the public. This differs from false light because in private fact cases, the photograph may entirely represent the truth. For instance, crimes such as rape are very real and factual, but revealing photographs of the victims may violate the privacy of the victim. For this reason, barring very special circumstances or obvious permission, even crimes visible in a public place do not necessarily give photographic license.
Mis-appropriation is using someone else’s likeness for gain. Stated another way, the undesired commercial use of a subject’s image is an invasion of privacy. One of the most prominent examples is a case where a photograph of Dustin Hoffman, dressed in drag, was used as part of a fashion magazine. A judge ordered the magazine to pay Hoffman $1.5 million in compensatory and another $1.5 million in punitive damages for altering and publishing the photograph without Hoffman’s permission.
If you are an amateur or professional photographer and you want to avoid liability, it behooves you to know what ground you stand on. Consider a person’s "reasonable expectations" to privacy. Do not trespass. Do not cast someone in a false light. Do not mis-appropriate. And be cognizant of that thin line involving private facts. Private judgment and professional judgment may be diametrically opposed, but it is best when possible, to let your conscious be your guide.
If you are the subject of a photograph, remember that you have no rights UNLESS you can prove one of the four torts was committed or that some reasonable expectation to privacy was breeched. One of the most egregious examples of photographic license is that of a half-nude woman escaping from her estranged husband. This Florida case was considered newsworthy, and therefore, was not considered an invasion of the woman’s privacy. As you can see, the Courts appear to favor the photographer and in this case, rather threw it in the woman’s face by adding this was not invasion especially since the more revealing photographs were not even published.
How can you protect yourself? It’s hard to say because every case is different. But at a minimum, let the photographer know your preferences. If a tort issue arises later, you can then also say that you did not give consent.