Photographing Strangers, Part 2
Navigating the legal and ethical minefield of street photography.
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Walking around at night in New York City, I often photograph strangers who are clearly visible through their lit window. Whenever I post such an image, I invariably get a few comments telling me what I am doing is both illegal and immoral. While addressing the former is easy, the morality question is where things get somewhat blurry. So, let's start with the easy part before we brave the ethical abyss of street photography.
If you’ve taken a lot of pictures in public, you’ve probably already encountered a person who vociferously claims they cannot be photographed because they own the right to their own image. In many cases, they’ll demand that you delete their photo. This could come across like a request or an intimidating threat. If the subject of the photo is a child, the photographer may have to face an alarmed parent who tries to call the cops, insisting that it's illegal to take photos of children. In such situations, it's essential to know the photographer's rights. Whether or not you decide to delete the image in question then becomes a personal choice versus an action taken out of fear.
So, without further ado, let’s go over the basics.
If you are in the United States, what matters is where you photograph from. If you are standing on a public street, then everything and everyone clearly visible from your vantage point is fair game. No distinction is made about WHO is being photographed. Celebrities, tourists, children, senior citizens, Times Square mimes — all are equally permissible. That playground which photographers avoid glancing at lest they be turned to stone? Fair game. Same goes for subways, bridges, airports and any private property visible from a public space (with exceptions for military and nuclear facilities). However, the moment you step on private property — like an Apple store or a hotel — all these generous legal rights expire like Cinderella's carriage at midnight.You can now be legally obliged to delete that photo or even sued if the image gets published. Also, be on the lookout for sneaky private spaces that look public, like Hudson Yards. If all you know is the WHERE you photograph from versus WHAT you photograph distinction, you already have a better grip on photographers' rights than most people.
Of the countless photos I’ve taken over my career, I’ve only been threatened with legal action only once. It had to do with the picture below. One of the subjects in that photo happened to see herself in a magazine a few years after her picture was taken. The young woman claimed that, because she was “underage” at the time, it was illegal for me to take her picture. Besides the fact that it's impossible to exactly guess the age of someone on the street (not that it matters from a legal standpoint), the irony — that she was waiting in line to enter a 21 & over club — seemed a bit lost on her. For the better part of a year, I received threatening phone calls from her father, promising to get the lawyers involved. “Please do,” I would answer, knowing that no lawyer would attempt such a frivolous suit. With this image, I was standing on a public street shooting just a few feet away. Case closed.
Now for the nuances.
“Clearly visible” means exactly that. I can legally photograph a person sitting by an open window of their fifth-story apartment without concern. Things would probably be different if I used a telescope-like 1000 zoom lens to peer into a space that one would reasonably expect to be private and could only be seen with military-grade specialized equipment.
Publishing an image. Not only is it legal to photograph anyone from a public space, it is also legal to display, publish and sell the images in any context except commercial (meaning advertising). This could get a bit confusing to a non-photographer, as it did for Erno Nussenzweig, an unwitting subject of a Philip-Lorca diCorcia Heads project. Discovering that a photo of himself sold for thousands of dollars in a fine art gallery, Nussenzweig sued diCorcia in 1999, claiming that this published photograph violated his religion. He famously lost. Had the photographer sold the image to Coca-Cola to use in an ad, however, the verdict would have been entirely different.
A slight, and fair, caveat to the rule is that you can't wildly and willfully misrepresent the subjects. If you photograph a bunch of teenagers hanging out in Washington Square and publish the image with an unfounded and damaging caption like "teenage junkies," you could be held accountable for defamation.
Local laws. Every country is different with respect to photographers’ rights. The United States is an earthly paradise for street photography compared to many other places. Hungary or South Korea, for example, side with the person who insists they own the right to their image. In both of those countries, the person actually does. It is illegal to photograph anyone without explicit consent, making candid shots essentially obsolete. By contrast, in Germany, the law allows photographing on a street but makes it illegal to publish the image without consent. If you ever try to look up German street photography and see a lot of shadows and backs, that's why. And even in the US, the laws are vary slightly, with some states — like Texas (it's always Texas) having harsher legal attitudes towards photographers.
If you have stuck with me through all the legal stuff, strap yourself in for the discussion concerning ethics. Like that rickety Coney Island rollercoaster, this is going to be both fun and uncomfortable.
Unlike the law, which usually has clear-cut parameters, there isn't a definitive answer to what is ethical when it comes to street photography. Once the notion of candid photography is allowed, the slippery slope of functional morality starts tipping towards relativism. What is acceptable for one photographer will make another’s skin crawl. My own voyeuristic tendencies can stir up a lot of ire, even if what I do is completely legal. I make sure to focus on a personal set of guidelines and advise everyone to formulate their own rather than spend energy defending themselves against those sensitive souls on the internet out for blood.
If you are not a photographer and are conflicted about the whole thing because you don't want yourself (or your children) photographed — even in a public space — I get you. Photographer's rights are not intuitive, and as you can see, they fluctuate wildly by location. But knowing all the legalities will help you just as much as it will the image-hungry thrill seekers like me. Next time you see someone taking your photo, don't escalate or threaten to call the cops. Turn away or put your hand in front of your face — a universal language for “please don't take my photo.” Hate it or not, with all the surveillance cameras, smartphones in everyone's hand and sneaky sunglasses that take both images and videos (stay tuned for recording contact lenses!), any expectation of privacy in a public space will soon seem hopelessly archaic.
Photographing on a street is a dance of sorts. I always watch out for those non-subtle signals of not wanting to be photographed, like turning away, and I respect them. But if someone asks me to delete a photo I have already taken, in most circumstances, I won't do that. Of course, depending on circumstances, I make reasonable exceptions — like the one time a man asked me to delete a photo of him and his date because that wasn't his wife. I am no home-wrecker. Deleted.
While I think everyone in a public space is fair game, I avoid photographing homeless or destitute-seeming persons without a specific purpose. Unless I am covering a story that has to do with poverty, I am very careful to not aestheticize suffering in my street photos. In the same vein, I avoid taking embarrassing images of anyone I point my lens at. That includes a whole plethora of actions from sneezing to picking a wedgie. Those transient moments say nothing about human behavior other than to single out the individual making an unflattering gesture. While I don't set out to photograph every person how they WANT to appear, I aim to photograph them in a way they don't mind being seen. Other than that young woman in the Meatpacking District, nearly everyone who found themselves in my images have thanked me for capturing the moment and asked for a copy (I always send one).
The images that seem to bring up the most controversy as to their ethics are the ones I take of people by their windows. "Reasonable expectation of privacy" gets thrown about a lot. If I flew a drone with an infra-red camera into someone's apt, that would be absolutely fair. But I am standing on a public street, as clearly visible to the subject as they are to me. The images I take are of people sitting or cooking by a lit window, the features often indiscernible since I am not using a telephoto. If it seems the open curtain is an accident and someone happens to walk into the light barely dressed, I won't take the shot. Common-sense ethics.
I know this was a lot of information. Use it wisely. Not to make things more complicated but be aware that what works for me may not work for someone else. It's harder for men to do all those things I listed above — like photograph children and point their camera into people's windows. Men just seem more...well, creepy and threatening doing so. It doesn't make it impossible, everyone just needs to be conscious of the perception they give off and plan accordingly, whether it's dressing the part or having a press ID ready. Most important though is knowing the photographer's rights.
Photographing Strangers, part 1 - Introvert's guide to street photography.
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