Permission required? Using photos of people & property on blogs


Photo by Mary R. Vogt, courtesy of MorgueFile

If you’re a regular reader, you might have noticed that I often post photos of people on my blog. People exploring a garden. People enjoying a festival. People just doing what people do when they’re out in public. I generally don’t ask permission before taking a candid photo, only for posed shots. I also regularly post photos of other people’s gardens (on tours, usually), though in that case I do ask permission first if I’m on their property, but not if I’m shooting from the sidewalk or street.

Lately I’ve noticed some bloggers saying they are reluctant to use photos of people or even other people’s houses and gardens because of legal or ethical concerns. The latest comment to that effect appeared on a post at A Study in Contrasts, regarding Kim’s and Chuck’s neighborhood photo tours. Firefly asks, “[D]o you need permission to photograph and publish pictures of your neighbors’ houses? . . . [I]f I saw a picture of my house on someone’s blog (especially with a comment about the garden) I’d be pretty unhappy if the person hadn’t let me know it was coming.”

This notion of house privacy surprised me. I’d given thought to the legality and ethicality of posting photos of people but not property. So I did a little investigating to see what I could learn. Here’s what I found out from a couple of online sources (for what they’re worth).

At About.com: PC World Computing Center, a discussion titled “More on Your Photos and the Law” offers this:

Photographing People in Public
Q: Can I photograph people in public places without their permission?

A: Absolutely. People get really muddled about this issue, but the reality is that you have a virtually unrestricted right to use a camera in public. One big caveat: It’s common courtesy to get verbal permission. Nonetheless, people don’t have the right to bar you from photographing them in public, where they would not ordinarily have an expectation of privacy.

Q: Can I publish pictures of people I’ve photographed without permission?

A: That depends upon the purpose of the picture. If it’s artistic or editorial in nature, or can be characterized as to inform or educate, then you do not need your subject’s explicit permission.

If the picture or any associated text may be libelous, defamatory, or fall outside of what courts have described as “the normal sensibilities” of the target audience, then you may need permission from the subject for your own protection. You also need permission from the subject if the picture is used for commercial purposes, such as in an advertisement.

So flaming someone is a no-no, and potentially libelous, but posting a photo of someone in a public place or at a public event, so long as the intent is not mean-spirited or commercial, is OK.

From Oregon lawyer Bert P. Krages II comes an explanation of the photographer’s rights, which I found educational. Here’s a link to the .pdf file, in which he says:

Members of the public have a very limited scope of privacy rights when they are in public places. Basically, anyone can be photographed without their consent except when they have secluded themselves in places where they have a reasonable expectation of privacy such as dressing rooms, restrooms, medical facilities, and inside their homes.

And as far as photographing houses goes, About.com: PC World Computing Center says this:

Most of the kinds of pictures you’re likely to want to take are within your constitutional right to do so. However, in some situations you’re not protected and can be held liable for damages. These, as you can see, are fairly obvious, common-sense situations and can easily be avoided:

Photographing on private property. You may not enter or photograph on private property without the owner’s permission.

Libel or slander. You can’t misrepresent facts through the use of a photograph or accompanying text.

Use of the photograph in a commercial application. You need permission to photograph someone for an advertisement.

It sounds to me that if you take house or garden photos, without permission, from a public street or sidewalk, your actions are perfectly legal—though naturally your neighbor may come out to ask what you’re up to.

Making critical or disparaging comments online about identifiable gardens, houses, or people is another matter, of course. That feels unethical to me, and I know I would not want to be on the receiving end of a post like that. The key is intent, as I understand it. We all know when the intent of a post is mean-spirited, and even if the writer believes the subject will never read it, you just never know. The internet’s reach is very wide.

I think Kim and Chuck have both been excellent and kind-spirited reporters on their neighborhood walks, showing us photos of interesting, humorous, or unusual sights along the way. I hope my numerous posts of public gardens and spaces, including people photos, have been perceived in that same spirit, which has always been my intent.

Ethics discussions are useful to all bloggers, so I’m glad to have been spurred into learning more from the comments at A Study in Contrasts. Perhaps by knowing their rights and responsibilities as photographers, other bloggers will be emboldened to let people into their photos now and then, because I find that adds richness to garden photography. People bring a garden to life, give it scale, and show us how to be part of it.

Added 9/12/07: Check out Andrew Kantor’s column CyberSpeak (12/29/05) in USA Today for more.

Note: I am not a lawyer, and nothing in this post should be construed as legal advice.

17 Responses

  1. Kim' says:

    Interesting, Pam–and what a nice, thorough tutorial for your fellow bloggers.

    Some of this (the commercial use side) I had known from my work in marketing communications. The other, amateur-photographer type stuff I had discovered when I researched the issue back when I wanted to post pictures of a public park last year. They had no specific policy posted (the Cleveland Botanical Garden, for example, does) so I had to do a little legwork.

    One addendum, if you will: Invasion of Privacy issues. You do not need to post something defamatory in order to be sued; an invasion of privacy can be grounds for that. For example, if you are taking photos from the sidewalk and zoom in through a window to show a couple inside in an amorous embrace, through a crack in a gate to show someone sunbathing topless inside their backyard, etc., there is a possibility of trouble. They could reasonably expect to have privacy within their own spaces at that point.

    Who knows how far to go with that issue, or where the lines can be reasonably drawn… that’s why I stayed with shots of the front yard, taken from public roads and sidewalks, just to be safe. I’m not showing anything that the average joe who walked down the street wouldn’t see–assuming they knew which street to walk, because I don’t identify it. Trust me, there’s one backyard that I walk by that I would love to photograph otherwise… they have the coolest lights, and their Halloween decor is to die for. (Pun intended!)

    Thanks, Kim, for spelling out that privacy issue. The rules are somewhat subjective, but they seem fair enough. By the way, I’d like to see your neighbor’s back yard sometime. Maybe you can get permission one day . . . —Pam

  2. Layanee says:

    The paparazzi should know about that privacy thing! They haven’t been after me yet but you never know! LOL Thanks for all that info Pam and Kim!

  3. Nicole says:

    Very thoughtful post,though the cultural differences make me laugh:in Trinidad many people love to have their pictures taken, and love to have their homes and gardens all over the media (preferably with their name/and or picture included!)

  4. Ellis Hollow says:

    I’m not a lawyer. But I don’t think ‘Making critical or disparaging comments online … ‘ is illegal. It might not feel good or ethical as you say. But for something to be libelous, it has to be false. If someone in your neighborhood defied a local ordinance and — I don’t know — put on an addition that went right up to the sidewalk, I would think it would be your duty to put pictures online and make critical and disparaging comments as long as they were true.

  5. Ki says:

    Thanks for digging up the information. I usually don’t want people in my plant photos unless it’s for scale. Which is a good thing because I feel like I’m intruding if strangers are in the picture. Now, buildings and yards that I can see from the street I don’t have any qualms about but I was taking a photo of a tree in someone’s yard one day and the woman slammed the window shut thinking I was photographing her even though the house was at least 150 feet from where I was standing. An unfortunate misunderstanding – made me feel like a voyeur.

  6. gotta garden says:

    Most excellent, Pam! Thank you so much for researching this! I try to be considerate when I am taking pictures in public. However, sometimes I can’t help getting people in my pictures, much as I might prefer they not be in them (talking public gardens here, for example). They have a right to be there, too, and I respect that. I have always thought that I, too, had a right to take my picture…and if they won’t/don’t move…well, what are you going to do?!

    I’m with you (as I mentioned on Kim’s blog as well) that I can’t see posting something negative. We’re all entitled to garden as we like (Didn’t Felder Rushing say something like that??!) and tastes can be different. And, I always want to give people the benefit of the doubt…maybe there’s something going in their life or maybe they’re just at a different place…who am I to judge? I know I don’t like people judging my garden! Especially if, as some say, your garden is a reflection of you (hmmm, scary…for me, totally out of control and full of weeds…yikes! It’s okay for me to be critical of my own…like family, don’t you think?)

    Anyway, I learned some things (always good!) and feel a bit better about it all. I had sorta thought about how newspaper photographers are always taking pictures and putting them in the paper…and I’m not thinking they’re getting permission…so, I knew there must be a fair amount of latitude.

    You did us a good service! Thanks!

  7. trey says:

    Common courtesy requires that we refrain from photographing people in their gardens without their permission. Taking pictures of their garden when they are not present is fine. I have generally just tried to put myself in the subjects place. I would be proud to have my garden photographed, but would like to be asked if its o.k. to have my picture taken. Of course 90 % percent of the time it would be o.k. ,except the 10% of the time I am as Kim said, “in an amorous embrace”.

  8. Colleen says:

    Thank you so much for researching this topic, Pam! This post, and the ensuing comments, are very useful. I’ve wondered about the legalities of this a few times, when I’ve been tempted to take photos of a few of the more interesting gardens in my neighborhood.

  9. Gardenista says:

    Thanks for the interesting post. Sounds right-on to me. We’ve had a few people wanting to photograph our yard and we’re happy to tell them to go right ahead. It’s flattering to know people appreciate what we’ve done!

    I always enjoy your lovely photographs.

    I’ve pondered posting on happenings at a nearby house in our neighbourhood, which according to all police community safety tips (ie. cars and people coming and going all times of the day, reclusive occupants who scream and fight), is a drug house. For safety and security reasons (we don’t want to be targeted!), I’ll keep it to the plants and shrubs nearby.

  10. This is very useful information, thank you for researching the topic. I’ve often wondered about taking pictures of other people’s homes and gardens. There are several beautiful victorian homes here and I’ve wanted to get pictures, but haven’t because I felt funny taking pictures of another persons home. Maybe now I’ll take that litte walk downtown.

  11. chuck b. says:

    Yeah, I’ve never felt any problem photographing people’s houses or landscaping (and I’ve always known it was perfectly legal). Anyone think tourists visiting photogenic cities like San Francisco or Savannah or London or wherever knock on doors seeking permission before they take architectural snapshots? Please.

    I like to have people on my blog, but I rarely feel comfortable even taking pictures of strangers (especially recognizable pictures). Sometimes tho’, I can’t help myself. And I’ve known it’s generally legal to take pictures of people in public. It happens all the time.

    I think two things need to be stated here: 1) Realistically, anyone can sue you for anything. The suit may be dismissed as groundless or whatever, but you may be sued for anything, and the legal costs for your defense will be yours to bear (in many states). 2) The law in the United States may sometimes be stated in general (i.e., national) terms, but it’s very important to understand the law in your state may be different from another state. Be careful about following legal advice stated in very general terms. (Note: I am not a lawyer; nothing I say is legal advice!)

    :)

  12. Pam/Digging says:

    Thanks for taking the time to comment, everybody. You made some good points that I didn’t think of, and I appreciated hearing your points of view on this aspect of blogging. —Pam

  13. Paul Brown says:

    Hi

    Great info. I was interested about the people issue. I offered a wedding couple a free photo shoot on the basis that I would use the photos for marketing purposes. The photo I took appeared on our site and I received a solicitors letter from them with the intention of sueing for damages becasue the photo was being used without their permission. We didn’t even identify them by name. Out of courtesy we removed the picture immediately but surely they cannot sue…or can they???

    I don’t know, Paul. Your situation sounds different than a blogger’s typical situation (which I was addressing) because you are a professional photographer using the photos for advertising purposes. I think you’ll need to consult a lawyer to know your rights on this issue. Good luck. —Pam

  14. ken ludwig says:

    I found your article on photographing houses and gardens quite helpful. I plan on putting up a website that basically honors the place I live, up here in Michigan. Several of the homes are over 100 years old, and are just beautiful. Every year, I photograph the Ice Sculptures (the artists come from all over the world to do them) and publish them to my friends and relatives.
    I was contemplating sending out a “model release” or permission letter before taking the photographs, just to be on the safe side. Any comment?

    I’m glad you found my casual research helpful, Ken. As I noted in my post, I’m not a legal expert, and I really don’t know the ins and outs of obtaining written permission. Good luck with your website. It sounds like you live in a beautiful town. —Pam

  15. I too have taken lots of pictures of interesting properties in quaint little villages around my area and was wanting to publish them in one form or another and was also wondering if i need to have the owners permission to do so. Any thoughts on this welcome.
    Regards
    Donna-Michelle

    All I know is what I researched on the Internet and reported here, Donna-Michelle. —Pam

  16. scott says:

    I have to ask where the line is to be drawn ethically and legally. Recently a Realtor posted a Youtube video, showcasing our neighborhood. This video is directly linked to this particular person’s business advertising site on the internet. The problem is that not one of the homes photographed and displayed is for sale or listed on the market. This seems to be very unethical by purposely photographing a home and then using it in a marketing campaign. I do not know if any of the home owners were contacted, but I do know that I was not contacted, being one of the owners. I think this is shady and lends to the chance of unsolicited home buyers, possible increase in crime (this is obviously a nice neighborhood), and taking the described quiet cul-de-sac and making it a parade route for people wanting to see the eluded to advertised homes. Where does the law start and ethics end or vice-versa?

    Good question, Scott. I don’t have the answer, but I appreciate your adding to the discussion on this post. —Pam

  17. how funny, i was just thinking about this issue as i wandered the street of laguna beach today taking photos of people’s gardens and homes. this information was SUPER helpful! i think about Google earth, and they have everyone’s homes on camera for the world to see. anyway, thanks for researching that, and i will be as sensitive as possible!