With a so many of us carrying a cellphone in our pockets, there has been an increasing number of amateur photographers and citizen journalists who have the ability to capture news-worthy moments as they happen.

The much debated, and long outstanding question surrounding photography in the modern age is who can and cannot be photographed with respect to privacy, as well as how the camera person plans to use the photo after it is taken.

Before getting into a photographer’s rights, it’s important to recognize that shooting a photograph and publishing it are two separate acts, with different legal stipulations.

Taking Photographs

As a general rule, a photographer is able to take photos of anything they want in a public place. This also means anyone who is out in public is subject to being photographed.

Public places include everything from parks, to sidewalks, to malls, public events, or stores. As long as it’s within plain view, you can capture it. It even applies to private property that can be seen from a public place.

Keep in mind the following restrictions when taking photos:

  • You are not allowed to take photos on private property when you are asked not to. For instance, many museums, art galleries, theatres, or concert halls prohibit photography with “no photography” signs.
  • You are not allowed to take photos of people where they have a reasonable expectation of privacy, such as in their homes, medical centers, restrooms, or banks.
  • Some government, energy, or military buildings, or even parts of airports may be off limits due to security issues.
  • You may not take photos of anyone in court or in a court building.
  • Copyrighted material (if you have intentions of reproducing it for monetary gain, more on this below).

You do not have to surrender your camera if a security guard or individual asks you to. It can even be considered theft if someone tries to pursue your property without a warrant. If you have taken photos on private property, officials may tell you to refrain or leave, but they cannot confiscate or delete your photographs.

However, refusal to leave private property or even exhibiting a negative attitude could lead to worse consequences, so remain polite and abide by the rules.

If you are unsure if something is off limits to shoot, it’s best to exercise safe judgment and think twice before pressing the shutter.

Publishing Photographs

While photographers are free to take photos in public, there are restrictions when it comes to publishing these photos.

Personal Use vs. Commercial Use

If you intend to profit by publishing a photo, it is being used for commercial purposes. More specifically, commercial purposes may include:

  • Company branding or advertising (e.g. individuals modeling clothes, food photography intended for a menu, etc.)
  • Reproducing the image with intent to sell (e.g. copies of the image)
  • Part of a product (e.g. book with photos, album art)

Personal usage in photography refers to anything outside of commercial use. So whether you wish to share photos with your family, frame them in your home, or post them on Facebook, this falls into your own personal use. As the photographer of the image, you own the copyright to it.

Informational Purposes

If you are publishing a photo of a reputable person for informational purposes, such as a news story, then the photo can be used without express permission. This is typically the case for tabloid or newspaper photos that are taken in public, as they are providing information of news-worthy people for public knowledge.

But, it never hurts to be cautious and get permission to use someone’s photograph, especially if there is a chance that the photo will later be used for commercial purposes.

Publishing photos of non-newsworthy people that reveal private facts is an invasion of privacy.

When to Use a Model Release Form

If you do intend to publish your images for advertising or promotional purposes, you must acquire a model release from the person(s) in the photo. This may also apply to specific buildings, if the shot was taken within private property. Some areas or locations, such as various national parks, also require that you have a permit for commercial photography.

A release is a written agreement signed by the subject/model in a photograph. It provides consent to the fact that the photo can be reproduced for commercial purposes. In exchange for use, the photographer may wish to give the model consideration or compensation.

As the publisher, you cannot use the image in such a way that is wrongfully depicting or misrepresenting the model in the image (whether for commercial or informational purposes). You also cannot modify photos of people through photo-editing software, such as Photoshop, and publish them without a model’s permission.

If you are unsure about your rights to commercial photography, it’s best to consult an attorney before proceeding.

Bottom Line

  • Get permission where possible
  • Respect people’s privacy
  • Adhere to no photography requests
  • Know your legal rights
  • Get a model release if you intend to use photos for commercial purposes

For more information, refer to the Photographers’ Guide to Privacy for an in-depth guide to photographic rights and privacy laws by state.

Posted by Kristy DeSmit

Kristy is a blogger, Twitter enthusiast, and company legalese interpreter.