Business Resources

Frequently asked questions about privacy and libel

Anybody can sue almost anybody for almost anything in this country. The job of a release is twofold: One is to make sure that if you are sued, you have a defense in court. The other, and in some ways the more important, is to dissuade your photographic subjects from filing a suit by making it clear at the outset that they are giving their permission to be photographed.

• Am I legally permitted to photograph strangers in public places? Are city and state parks considered public places?

• If I photograph a man doing something silly such as slipping on a banana peel and the picture appears in a newspaper, can he sue me for holding him up to ridicule?

• If I photograph a crowd at a baseball stadium and it’s published, but the boss of one of the people in the audience recognizes him as an employee who called in sick that day and fires him, can he sue me for causing him to lose his job?

• If I take a picture of a seedy neighborhood and a magazine editor writes a caption describing it as a red light district, can I be sued for defamation by someone shown in the picture?

• When does the right of privacy protect someone from having his picture taken?

• What are the rules about photographing nudes?

• If I photograph my young children in the bathtub and send the film out for processing, could the processor turn the film over to the police? Could I be prosecuted for child pornography?

Q: Am I legally permitted to photograph strangers in public places? Are city and state parks considered public places?

A: Yes, you can photograph strangers in public places, unless you do it to such an extent and in such a way that you become a harasser or nuisance to the public.

City and state parks are generally public places. Figuring out what is or isn’t a public place is usually easy, but not always. If the public is allowed free and unrestricted access to a place, like streets, sidewalks and public parks, it is probably a public place (although parts of sidewalks and what appear to be public parks may be privately owned). Once you go indoors, you are probably no longer in a public place, and some person or entity can probably make the rules, including restrictions on making photographs.

Note that even in public places, police officers have broad powers to protect the public from possible harm and to enforce the local ordinances. If a cop tells you to stop, you’d better obey promptly and defer the arguments until after you’ve checked with a lawyer.

Q: If I photograph a man doing something silly such as slipping on a banana peel and the picture appears in a newspaper, can he sue me for holding him up to ridicule?

A: In the areas of defamation, libel, etc., truth is almost always a good defense. Assuming the photo is not staged or manipulated, i.e., that it is a true and accurate image of what really happened, and assuming it is used for editorial purposes and not trade or advertising, the photography by itself will probably not be a source of liability. However, if the newspaper decides to do something like run it with a headline that says “King of the Klutzes” and an embarrassing or humiliating story, there could easily be a successful lawsuit. The liability, though, would belong to the publisher of the newspaper, not the photographer, although the photographer would probably be stuck having to defend him- or herself in the suit. Even worse, the photographer may have signed an agreement with the publisher in which he/she promised to indemnify the publisher. In that case, the photographer would be stuck with all of the costs and liabilities, even though the fault would be the publisher’s.

Q: If I photograph a crowd at a baseball stadium and it’s published, but the boss of one of the people in the audience recognizes him as an employee who called in sick that day and fires him, can he sue me for causing him to lose his job?

A: If it is published as an editorial photo, not as part of an ad or used for other trade purposes, he would be unlikely to win such a suit.

Q: If I take a picture of a seedy neighborhood and a magazine editor writes a caption describing it as a red light district, can I be sued for defamation by someone shown in the picture?

A: Yes, which is why your paperwork with the magazine has to make it clear that there is no model release (if there is none). Ideally, the magazine should agree to indemnify the photographer against any damage from publishing the picture, since the magazine is the one that controls the use of the photo, and it is the use — not the photograph — that creates the liability. Unfortunately for photographers, in today’s world, that seldom happens.

Q: When does the right of privacy protect someone from having his picture taken?

A: When a person has taken steps that would give rise to a reasonable expectation of privacy. If you go into a room with closed doors and window shades pulled down, you would probably have a reasonable expectation of privacy, and someone putting a fiber-optic lens under the door and taking your picture would probably be liable for invading your privacy. If you are sitting at a window table in a restaurant, you are probably fair game.

Q: If I stand outside a store and take a picture for publication of someone inside, either through the door or store window, is that a violation of some sort?

A: Probably not. Standing in a store with glass windows and doors is not a situation that would give a reasonable expectation of privacy.

Q: What are the rules about photographing nudes?

A: This is a huge and volatile topic. First, let’s assume we’re talking about subjects who are legally competent adults. Let’s also assume that you are taking the photographs with the models’ knowledge and permission, and that they have given you valid model releases. The language of the release covers both privacy and defamation issues, so you should be covered on that score.

That leaves the question of whether the photos are obscene. If they are, you could be charged with violating state and/or local obscenity laws. What is obscene? The U.S. Supreme Court has struggled with this question. Justice Potter Stewart characterized it as “trying to define what may be indefinable.” The Court’s guidelines, if you can really call them that, are hardly more than the instinctive reactions of the people in the street:

“(a) whether ‘the average person, applying contemporary community standards’ would find that work, taken as a whole, appeals to the prurient interest… (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, political or scientific value.”

The kicker is the “community standards” part, especially in an internet era. Not long ago, a San Francisco couple running an internet website found themselves indicted for violating obscenity laws in Tennessee, and the community standards in those two communities are presumably quite different.

Q: If I photograph my young children in the bathtub and send the film out for processing, could the processor turn the film over to the police? Could I be prosecuted for child pornography?

A: This area is a real hornet’s nest of emotions and political sensitivity. Yes, the processor could, and might, turn the film over to the police, and yes, you could be prosecuted for child pornography. You wouldn’t necessarily be convicted, but the whole process would be enough to ruin or at least severely damage your life and reputation. Just ask some of the photographers to whom this has happened.

There are occasional reports of over-zealous lab employees inappropriately blowing the whistle over photographs no more offensive than the classic naked baby on a bearskin rug. These days, you are better off using digital cameras and printing your own photos than using a lab where unclothed children are in the picture.

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