(UPDATED) Since the inception of street photography, there has always been tension between photographers wanting to capture the lives of ordinary people and turn them into works of art and the subjects of those photos who feel violated by the unauthorized use of their likeness.
Legal doctrines, such as the right to privacy, were initially developed to protect individuals who were victims of “yellow journalists” who used photos of people “out of context” to tell a false narrative and profoundly impacted the subject’s reputations and stature within their communities.
However, from the street photographers perspective, these laws also inhibited their freedom of expression, a right enshrined in the Constitution’s first amendment. On top of that, several other legal doctrines have also placed limits on the right of street photographers to create works, including national security concerns, trespassing and harassment laws, and governmental regulations.
These conflicting elements have made it difficult for street photographers and the general public to know what actions are permissible under the law and when a photographer needs consent before taking a photo.
In this article, we’ll delve into street photography’s legal landscape, balancing a photographer’s First Amendment freedom of expression and the people’s right to privacy.
Balancing Freedom of Expression and the Right to Privacy for Street Photographers
Generally, if street photographers shoot from a public space, such as a street or a park, they usually have the right to photograph anyone without their consent, even in a private space. If you can see it from a public space, you can take a picture of it.
The legal reasoning for this latitude, at least in the United States, stems from the First Amendment’s freedom of expression clause and the long line of Supreme Court decisions that have interpreted it. The Founding Fathers believed that a free society is one in which a person can speak their mind without fear of reprisals by those in power or those who may disagree. Everyone is better off when people may freely express themselves, and information flows unencumbered to ensure an informed citizenry.
Since art and editorial works are considered a protectable expression of one’s mind (and part of the Constitution), courts will often prioritize freedom of expression.
Street photography is a perfect example. More than just pretty pictures, street photographers tell stories intended to illuminate aspects of society. Whether it’s Martha Cooper capturing New York’s Graffiti Gangs in the 1980s or Robert Frank showing us the Beauty and Horror of 1950s America depicting various aspects of society, the courts want to protect those images.
Robert Frank “Main Street – Savannah, Georgia” (1955)
On the other hand, privacy has also become a fundamental right. While not explicitly mentioned in the Constitution, the right to privacy has been derived from personal protections articulated in the Bill of Rights. Without a privacy right, many of those protections couldn’t exist, such as the privacy of beliefs (the First Amendment), the privacy of the home against demands by the government to house soldiers during peacetime (the Third Amendment), protection of one’s person and possessions against unreasonable searches (the Fourth Amendment), and the right to not self-incriminate (the Fifth Amendment).
The Supreme Court has also declared the right to privacy as an extension of the due process clause of the Fourteenth Amendment, which guarantees that no person shall be deprived of life, liberty, or property without due process of law.
Unfortunately, in their quest to capture ordinary people’s raw emotions and candid moments, street photographers may sometimes inadvertently invade the privacy of the person they are photographing, so with the courts have had to find a way to strike a balance between these two seemingly conflicting rights.
There is No Right to Privacy in Public Places
Privacy is “the state or condition of being free from being observed or disturbed by others.” So It would be objectively unreasonable to expect privacy on a city street or a crowded subway. Therefore, the courts have interpreted this to mean that the privacy right of a person doesn’t apply unless that person has a reasonable expectation of privacy.
Put more directly, you have given up any expectation that you cannot be “observed or disturbed by other people” when entering a public space or being in a position where others can see you in a public space.
The practical result of that legal doctrine is that street photographers can take a picture of anything they can see from a public area, even if the photo’s subject is on private property. For example, a photographer would be free to photograph a couple sitting on a restaurant patio or inside the restaurant through a window as long as the photographer is on public property.
Steve Schlackman, “The Long Commute” (2011)
On the other hand, it is illegal to take photos of people where they have a reasonable expectation of privacy. If you are in a public bathroom stall with the door closed, there is a clear expectation of privacy, such that nobody can shove a camera over the stall wall and take a photo of you.
However, if you are in a private hotel room with a giant window and the photographer can view you from the street, there is no expectation of privacy. Absent local laws expressly establishing an expectation of privacy, the photographer could shoot photos of that person without your permission.
While reasonable minds might differ about whether certain photographic acts cross an ethical line, shooting from public spaces is generally not illegal. For example, in 2014, the Massachusetts Supreme Court ruled that secretly photographing under a woman’s skirt on a public street, also known as “upskirting,” was not illegal as far as the right to privacy. If the photographer can shoot it from a public space, then the expectation of privacy simply doesn’t exist.
The state later passed a law that prohibited the act. Following suit, in May 2016, New Jersey added a viable upskirting statute:
“Photographing, filming, publishing and sharing of images taken of the clothed intimate parts of another without his or her consent, and under circumstances in which a reasonable person would not expect to have his or her private body parts seen.”
Note the “and” in the statute, which maintains the expectation of privacy but clarifies it so that despite being able to see under the skirt in a public place, there is nonetheless an expectation of privacy for keeping a woman’s “private body parts” hidden.
Is it Art or Created for a Commercial Purpose?
While street photographers are free to take photos in public places without consent, how the street photographer intends to use the images may be limited.
As mentioned earlier, street photographers’ rights derive from the first amendment’s freedom of expression. However, when a photo is created or used for commercial purposes, it can lose its status as “art” and, therefore, doesn’t receive the same level of protection.
What do we mean by commercial purposes? It means selling work directly or indirectly for profit. Of course, photographers often sell their work as prints, so under this definition, the street photographers would lose their First Amendment shield if they ever tried to sell the work.
The courts have recognized that it would be disastrous if artists are prevented from making a living from their art merely because people in the photos are recognizable. Imagine taking a high-resolution image at a concert and being unable to sell it because someone in the stands doesn’t want their likeness used in a commercial context. Courts have developed exceptions to resolve this tension and enable artists to create works without fear of legal action.
In one exception, merely selling or transferring an artwork or photo does not make it commercial. Courts instead look to see if the artwork promotes or advertises a product or company, or if the work is sold in high volumes, like on a t-shirt at a major retail chain. So, selling images for profit, whether online or in a gallery, is not necessarily a commercial purpose.
Arne Svenson: “The Neighbors”
A great example of how courts have applied these rules and exceptions is a case in which photographer Arne Svenson took photos of his neighbors through their apartment windows without their knowledge or consent. Svenson’s show, “The Neighbors,” opened at a New York City gallery, after which the subjects of his photos promptly sued him for invasion of privacy. First, the Court said that the neighbors had no reasonable expectation of privacy from people seeing them because they had left their curtains open and were visible from the street. Secondly, since the photos were being shown in a gallery as “art” and only sold in limited editions, they were not being sold for commercial purposes.
However, had Svenson not shown the works at an art gallery and simply put the images on t-shirts, the court might have reached a different conclusion. And, of course, if he used the photos as an ad to sell apartments in the building or something similar, that would be commercial.
Arne Svenson’s photography rights outweighed the right of privacy when secretly taking photos of a family through their windows.
Other Laws Can Affect Freedom of Expression
Commercial purpose is not the only limitation imposed on freedom of expression. A host of laws can limit First Amendment rights, such as national security, safety, health, or personal protection laws. While it may be legal to photograph strangers in public places, they could be trespassing as soon as the photographer steps onto private property. An artistic expression derived from an illegal act may not receive First Amendment protection.
Even when entering a private property that isn’t immediately considered trespassing, such as a hotel, the photographer must still comply with the property’s rules (or that of its agents, such as an employee or security guard), even if those rules aren’t readily visible.
Just because you don’t see a “no photography” sign doesn’t mean photography is allowed. If a security guard tells you that photography is prohibited, rebutting with “I don’t see any signs” is useless and does not help your legal position.
Even seemingly public places, like city parks, may have rules that may impact a photographer. For example, the government could restrict the use of certain types of equipment, such as tripods or supplemental lighting, since they can disrupt the general flow of traffic or create a safety hazard.
Additionally, those areas critical to a city’s infrastructure, such as subways, tunnels, or power plants, may also have restrictions based on security and terrorism. Also, military bases, crime scenes, airports, museums, energy installations, courthouses, public hospitals, and certain government facilities may be off-limits to photographers or subject to significant limitations for security, privacy, or logistical constraints.
Courts have generally concluded that such rules comport with the Constitution, so long as they are enacted for legitimate safety reasons and not as an attempt to quell unwanted speech. So, if you plan on doing a shoot requiring excessive equipment or spending time in heavily trafficked areas or locations with a security concern, it is a good idea to check the rules. It may also pay to have those rules printed out and available in case the police or another official who may need to learn the regulations asks you to leave.
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Street photography is an essential artistic expression that captures our world’s beauty, diversity, and humanity. While the legality of taking photos of people in public spaces may vary depending on the jurisdiction, the general rule is that photographers have a right to capture images of people in public areas as long as they do not infringe upon their subjects’ reasonable expectation of privacy, engage in intrusive behavior, or use the images for commercial purposes without consent.
Understanding the legal framework surrounding street photography, respecting the rights of individuals, and being sensitive to their feelings, are essential for street photographers to create powerful and meaningful images that contribute to our collective understanding of the human experience. By understanding the balance between freedom of expression and the right to privacy, street photographers can continue to capture the essence of life in its most authentic form, contributing to the rich tapestry of artistic expression that defines our world.
Have you run into any issues when taking photos in public? Let us know in the comments below.
