Permitted photography part 2 – pictures and the image of persons photographed

In contrast with the citizens of North Korea and some other similar places on the globe, we are living in a legal system in which photography is, as a rule, permitted. When taking pictures on the street, we shouldn’t expect being charged with the disclosure of state secrets or propagating foreign, unacceptable values. In the case of taking and publishing pictures of people there are, however, certain rules substantially limiting the freedom of photographer; ultimately, creative freedom clashes with personal freedom – the image and privacy of the person photographed – and the legal system must find a way to settle such disputes.

First we should consider what actually the image is. Copyright experts define “image” as an intangible creation, presented by artistic means, depicting a person’s likeness on the basis on how such person may be distinguished. The image may be expressed in a picture, portrait, film etc. It is also stressed the image may relate to not only the appearance of a given person, but also to other additional recorded elements, such as make-up, dress, manner of movement and communication with the surroundings.

Taking pictures of natural persons (not to be confused with publishing pictures) does not infringe such person’s rights to his image. We may however infringe in this manner other personal rights of such person, such as the right to privacy, inviolability of one’s premises or home or others (if we, for example, take pictures of this person without their consent in a private situation by entering their property or their home).

It may be illustrated by example that taking pictures of people on the street for your own purposes is permitted if such people are only background elements (i.e. the picture may not be, among other things, cropped to display a given person). Taking pictures of individual people requires, as a rule, obtaining their prior consent (because it may infringe upon their right to privacy). The fact that a given person poses for a photo, smiles or does not object may be deemed consensual (to being photographed, but not to having the picture freely distributed).

Distribution (publication) of a picture without a person’s consent will almost always constitute an image infringement of such person irrespective of when and on which medium such picture is distributed (e.g. in a magazine, on a blog – if it is available for other Internet users, on social networking sites etc.). It should be thus stressed that irrespective of whether taking pictures in a given place or in given circumstances is permitted, distribution of pictures on which a natural person’s image is captured will almost always require obtaining the consent of such persons (we will deal with the exceptions below). However, consent to having a picture taken (a passers-by smiling at the photographer) must not be identified with the consent to the distribution of such picture.

The law basically provides for only three situations when publishing an image of another person without their consent is permitted (we will not delve into the right of sports associations to use the sports person’s image in the colors of national team – that’s a different story):

• when such person has received payment for posing – in relation to the image recorded in this way and provided that such person did not explicitly specify that they do not grant their consent for its publication (e.g. a model that received remuneration for posing);
• when such person is publicly known and their image (picture) was recorded in connection with the performance of a public function, especially political, social, professional (e.g. politicians, sports persons, artists, experts frequently expressing their opinions in public), but it is assumed the use of such picture should relate to the context of a given event (e.g. not in an advertisement) and have some informative character;
• when such person constitutes only a component of the whole (such as gathering of many people, landscape, public event).

As a rule, it should be determined the photographer who wants to distribute the image of a photographed person is responsible for obtaining their consent (with the exception of any of the aforementioned cases). Consent to the distribution of an image in a specific context should not be assumed and it is recommended to obtain it expressly, although circumstances accompanying taking a photo and relations between the photographer and a photographed person may determine that the consent was granted. The law does not require the consent to be in writing, but it should be noted that granting oral consent will be difficult to prove should the matter find its way to court. Therefore, if we want to distribute a picture of someone in a manner that can – as may be guessed – inspire a negative reaction of such person (e.g. for commercial purposes), it is recommended to obtain the appropriate consent in writing. In the next post we will deal in detail with the aforementioned exceptions that allow the distribution of image.