Photographers of all stripes are always looking for a great subject. That could be indoor surroundings, local architecture, natural scenes, or daily life in their neighborhood, town, or city. But it’s sort of inevitable that candid shots of everyday life will have people in them. In this day and age of (admittedly ironic) privacy paranoia, what’s a photographer to do?
Know Your Laws
As with plenty of other legal questions, state guidelines often prevail. Speaking in generalities though, there are a couple of criteria that can guide your decision to include people in your images. First off, is your work purely a work of art, an “artistic expression” of sorts? If you are inspired to take a photo based on subject, lighting, composition, or another artistic consideration, then the answer is yes. That work is protected by the U.S. constitution. And if someday that shot of a random individual ends up in an exhibition at a local gallery or as part of another collection of photographs, there isn’t a basis for them to bring a legal suit against you–here’s why.
A person who is outside in a public space has already forfeited some degree of their right to privacy. They are out in the open for all to see. Taking their picture with equipment that is readily available to anyone in the community is well within the scope of acceptable and legally protected behavior. Believe it or not, the same holds true for individuals in their homes if they don’t take reasonable steps to protect their privacy. So folks hanging out in the yard, on their porch, or even inside their home but in front of an uncovered window cannot expect total privacy.
In fact there was a pretty important case that established this in the courts. The artist was using a standard and widely available telephoto lens to peer through large, uncovered windows, capturing images of neighbors engaged in their daily lives. Yeah, we know, it sounds a little too Rear Window-esque, but no worries–there’s nothing sinister going on here. It’s just an artist making his art. And the court sided with the artist. Close your curtains, folks.
One key caveat: if a photographer uses special equipment that isn’t readily available to the public to snap photos of people in their homes, or if the individuals took precautions to protect their privacy, there’s less legal footing for a photographer to stand on.
When You Need a Release
Again, we have to start out with the fact that laws and regulations vary–be sure to check in with the respective office in your state. But in general, there are situations in which you should definitely aim to get a release signed by the photo’s subject. The main issue at hand is whether the image was taken for commercial purposes.
Your artistic rights are immediately compromised when anticipated financial gains enter the picture. That’s because every individual has the legal right to dictate how their image will be used if the photographer intends to derive a commercial benefit from their likeness or identity. So if you’re photographing an event for use in a commercial or advertising campaign, it’s best to get releases from any identifiable individuals pictured. That would be the safest course and could protect you in the face of potential legal action.
But what about public images you take without consent that are eventually sold? This is where it comes down to intent. If you took an image purely out of artistic expression, without the sole intention of selling it, then more than likely you can fall back on the constitutional protection of freedom of speech and expression. At least that’s the precedent we’ve seen thus far. That said, things could change, and a new case could blow precedent out of the water. What to do then? That’s where Insurance for Artists (IFA) and Zinc step in and save the day.
Artfully Crafted Insurance for the Artistic Crowd
The day-to-day reality of being an artist taps into levels of liability and risk that the average policyholder will never face. No worries–IFA was born for this! We have a policy to protect against all the what-ifs you’ll encounter in the creative space. Because even though you might have the law behind you, a trip to court isn’t free, and proving your right to practice your art requires professional guidance–that also comes at a cost. IFA coverage will give you the support you need to keep doing what you love, come what may. Get in touch with Zinc’s dedicated team to learn how an IFA policy can help you. Get your quote today!
This blog post does not provide insurance advice and is intended for information purposes only. It is not a substitute for professional insurance advice from a licensed representative. Never ignore professional insurance advice because of something you have read in this blog post. Contact your licensed representative if you have any questions about your insurance policy.