Legally Speaking: What Is The Law About Selling A Photo With An Unknown Person In It?
I am a photographer and I often take pictures at the beach etc where there are people and or dogs standing around. Mostly they are too far away to recognise but I am wondering what the law is about including a person in a photo for sale without their permission. See example below. What if it is just a picture of a dog, do I need the owners permission?
Firstly, I am not a lawyer, and if you want a definitive answer to your question and your particular circumstances, suggest you speak to a lawyer. For what it's worth, where I live (UK) people have no right to privacy in a 'public space', so providing the persons you photograph are in a public space you can photograph them, and sell those photographs, eg, through a stock photo agency for editorial use. This may, or may not, be the situation for photographing people in other countries.
Everyone, even minors, is entitled to a right of publicity, which is an individual’s right to control their own likeness and to stop others from using it commercially without permission.
Photography for artistic purposes, however, generally does not require model release forms because an artist’s First Amendment rights tend to trump an individual’s right to control their own image.
However, to protect yourself in case of any further actions, it is better to cover yourself and have permission given before you use the images, especially if the person is recognisable. For instance, do they show a tattoo.. do they have a distinguishing feature or item of clothing?
But people with no permission should only be used on prints, not products.
I "think," as long as the person isn't identifiable, as in your sample image showing the person from the back, the sky is the limit, you can do whatever you want with it. But, as soon as the person becomes identifiable (recognizable, facing the camera), you're limited to fine art before you'd need permission to use the image.
As others have stated, check your local laws first.
With the usual "not a lawyer" admonition, I make a point of not having people in the picture if they are recognizable. When it comes to street photography, shot from a distance, who knows, how far away do you have to be, are they the focus of the picture, etc. The person would have to know that you have them in the picture, that you sold it and that there is a fortune to be made from their part of the $10 commission. It doesn't seem like much of a target for a lawyer as long as you don't do anything awful or defamatory.
I have seen people who post what is obviously a portrait, or recognizable close-up of a real person on FAA. I'd want to be clear on permission before I did that.
As a general rule, I don't post anything for sale with a recognizable person in it just to be safe. By that I mean, I avoid posting if someone's face is in it. I usually try to avoid people in photos but sometimes a figure can give a sense of scale. Silhouettes in certain spots can make nice shots too. I wouldn't hesitate to post a photo like the one in the opening post. The person in it might recognize themselves from the rear but anyone who doesn't know them wouldn't know who it is.
There's an old saying that is very applicable here, "when in doubt, bale out".
Abbie is correct when it comes to US law. Like Adam, I avoid shots with people in them but would not hesitate to use one that has no recognizable faces in it. But you're in Australia. Best to check with an attorney on Australian privacy laws and how photography is viewed within those laws.
as far as i know, not speaking as a lawyer, you can sell things like that as art, but not stock. i try to get people in groups, or their backsides, or faces covered when i can. because even if you legally in the clear, it doesn't mean that the person in that image wants to be sold, even if you are allowed. like one guy shot with a high powered zoom, people's apartment windows, and sold them. they took him to court but he won. but he still went to court.
Alison I think art /wall prints are considered artistic, not falling under commercial until the image is put on products.
When thinking of recognizable we always refer to the face assuming it is fine if we photograph the back of the person as if that makes them unrecognizable. I would imagine that could have the potential of causing an issue as well.
Just sayin the woman in the photo example is most likely very recognizable to some and her own self.
I have a few freighter shots where people are in their pleasure craft next to the much larger ship. Usually they are facing away from the camera and looking at the freighter, but in the couple I have where the face is possibly recognizable, I've blurred out features of the person's face just to be sure and I always remove the registration number on the pleasure craft if it's visible on the boat. Just to be on the safe side.
Commercial photography involves the taking of photographs for commercial uses (product shots, head-shots, etc). These photographs are often used for the promotional marketing of a business including website placement, product previews, and business card/marketing material images.
Fine art photography is created for the image alone. Not to push some other product.