By J.L. Sofka
6 Nov 2010
The First Amendment to the United States Constitution
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
Contemplating my future artistic and business possibilities, I've been considering my rights and ethical responsibilities as a photographer. The right to privacy is a much-debated issue these days and sorting through online information and sometimes misinformation to determine the legality of publishing unreleased photographs of identifiable people is a daunting endeavor. Naturally, getting a model release is always preferable, but in many cases it is quite impractical. Laws related to photography are ambiguous and vary from country to country and in the US, from state to state. Copyright and rights to usage are separate concerns. So while a photographer may own the rights to an image, she/he is certainly not free under the law to use it any way that they see fit.
It is my understanding that a photograph is publishable with a minimal litigation risk if the following criteria are met. It would be an understatement to say that each of these criterion is complex.
1. It does not violate a person's right of privacy or publicity.
2. It was taken legally in a public place and there was no trespass of private property.
3. It does not defame an individual or an organization.
4. It is protected by the first amendment.
5. It does not suggest that someone subscribes to a particular idea, product or service.
For many years, I shied away from taking photographs of people, but one can only do so many flowers, insects, buildings etc. Like most artists, I appreciate the beauty of the human form and since I don't have model releases for most of my images, I'm always looking for something of interest in a person other than their face as I don't want to be sued even if the outcome would be in my favor. Also, I'm experimenting with disguising the subject's identity during processing. A photograph pulls us into the viewpoint of the individual photographer who selects the subjects to be shared with the world. What we photographers want to express must be balanced with the rights of the human subjects we observe and record.