Winogrand, Evans, et al, and the legalities of street shooting...

flamingo · 06-01-2005

So, Garry Winogrand, Walker Evans, Robert Frank, etc. published thousands of shots and sold countless prints in galleries for profit by anonymously "street shooting" people from all walks of life. And they did this without getting people's permission ?

What if, years later, you're in a Barnes and Noble thumbing through one of their books and you see a picture of yourself (or a family member or friend), clearly identifiable ? Does that person have the right to sue his estate, or if the photographer is still living, sue him ?

Or is it legal to publish and sell people's photographs in "art form", (note I say art form, not journalistic, or news form) without their permission as long as the photo is taken in a public place ?

Sounds like a tricky legal and ethical issue to me.

What are the legalities of "street shooting" and subsequent publication for personal profit ?

Or did Evans, Frank, and Winogrand chase people up the street after shooting their picture waving a model release asking them to sign ?
Seems highly unlikely, yes ?

To anyone's knowledge,has this topic ever been discussed regarding Garry Winogrand or for that matter, with Winogrand himself or any of the other famous published street photogs ?

I have always been curious about this, as I am sure many of you have. Seems to be one of those taboo topics nobody likes to discuss. Anyone ?

kbg32 · 06-01-2005

This always a thorny issue. It depends on how the image will be used. It is legal to photograph anyone on the street. You just can't falsely represent who they are. Check out the PACA website for legal issues. www.pacaoffice.org (Picture Agency Council of America)
.
There was an instance some years ago, the cover of the NY Times magazine. A photographer photographed a man in a business suit walking around Wall Street for an article on black men working in finance. The man sucessfully sued the magazine. He was not a businessman and did not work in finance. He claimed he was falsely represented by the image.

Cheers,

Keith

einolu · 06-01-2005

Just an anecdote:

my sister would take the subway to school every day. one time we went to the harvard film archive where they have random art displayed. one of them was a photograph of her waiting for the subway, it was quite interesting.

who is going to sue in that situation and on what charges? if a person is in a public place I dont think there is any law saying you cant take their picture. I think release forms are more for models that you shoot in a studio, weddings you shoot on private property or advertising.

gns · 06-01-2005

I'm sure Winogrand never bothered with any form of consent or release. If you are working in public, well what's the definition of public? Not private. No need for release forms. At least in the past. Laws are always changing, though.

Pherdinand · 06-01-2005

[quote=flamingoWhat if, years later, you're in a Barnes and Noble thumbing through one of their books and you see a picture of yourself (or a family member or friend), clearly identifiable ? Does that person have the right to sue his estate, or if the photographer is still living, sue him?[/QUOTE]

No,no,no. I have no right to sue anyone if i see my big ugly face in such a beautiful creation. Noone else should have the right to sue anyone, including the Queen of England (sorry brits, just a random picking). If someone is so handy that he makes money on taking my picture, good for him; I feel flattered and not robbed.

I have never understood this crazyness about sueing people. Today you can hear people sueing each other for every sh|t they think of. What's the result? Inscription on the coffee mug saying "warning: the content might be hot". It makes me feel stupid and think the whole society is stupid.

Sean Reid · 06-01-2005

Usage is the key to this. If the pictures are going to be used to sell anything (shaving cream, soda, etc.) then the recognizable people in them are effectively acting as models and model releases are needed. If the pictures are for exhibition and/or publication (non-commercial) then a release is not required. So Winogrand's non-commercial work needed no releases but his commercial work did. Photojournalism technically does not require releases, for example, but some magazines may ask for them anyway, depending on the picture, etc. And...nothing's iron clad and a judge or jury could make a surprising decision in spite of the law. For an excellent guide to this, see Bert Krage's info at: http://www.krages.com/ThePhotographersRight.pdf

Cheers,

Sean

Pherdinand · 06-01-2005

"The man sucessfully sued the magazine. He was not a businessman and did not work in finance. He claimed he was falsely represented by the image."

See, that's what I mean. The man found a backdoor (or, his lawyer did) and took the hard earned money of the magazine without any real harm happening to him.

Justin Low · 06-01-2005

Quote:

Originally Posted by Pherdinand

What's the result? Inscription on the coffee mug saying "warning: the content might be hot". It makes me feel stupid and think the whole society is stupid.

Bravo! I agree.

flamingo · 06-01-2005

Okay, let's look at it for a moment from the subject's perspective.

Let's say Winogrand (or whoever) did take your photo in a public place, without your knowledge. You never signed any model release or permission to publish your image. By nature you are a very shy person and just don't like having your picture taken.

Now let's take it further. Let's just say that it was your[/b] expression or action in that photo that "made" the shot and Garry, or his agent, or Joe Blow whomever, decided in editing he was going to include it in his next book. Or, he decides to print a signed "limited edition" of 300 prints and gives them to his gallery agent to sell, who, let's say, gets $1,500 per print.

So, now, years later, Winogrand's estate, and the agent have made a combined total of four hundred and fifty large off of a photograph of you. You never knew anything about this, the fact that you were the subject of the said image and it was your image that in fact made it sell so well. Is this considered "commercial use" ?
I would think that "commercial use included any use that made a profit, no ?

I understand the right[b] of the photographer to take any photograph he/she wants to in a public place, but to reiterate, as Sean said above, "Usage is the key to this". If the photo sits in your private photo album or slide carousel at home for the next 50 years, fine. No harm done. Perfectly legal.

So if, in supposition[b], Winogrand, Evans, Frank, Friedlander, or even Cartier-Bresson for that matter, had been doing this for years, how were they able to do it ? How did they get away with it for so long ? Were they ever sued ? Or is it simply that, the 40's, 50's, 60's, and 70's were a different time, a different era, when society was not as litigious as today ?

einolu · 06-01-2005

But you were not used to sell anything. For example they didnt edit in a cigarette into your mouth or the like. People can look at you on the street and take pleasure in it if they wish, this is just taking that a bit further.

RayPA · 06-01-2005

Quote:

Originally Posted by flamingo

...

So if, in supposition[b], Winogrand, Evans, Frank, Friedlander, or even Cartier-Bresson for that matter, had been doing this for years, how were they able to do it ? How did they get away with it for so long ? Were they ever sued ? Or is it simply that, the 40's, 50's, 60's, and 70's were a different time, a different era, when society was not as litigious as today ?

Walker Evans held onto his subway portraits for 20 years out of fear he would get sued, so I don't think the times have changed much. It was a concern back then, too. In reality you can sue (or atttempt to sue) anyone for anything. I think the reason why these photographers haven't been sued in the past is because it has been so difficult to set a precedent for it. Setting a precedent for a suit would open a can of worms. There really isn't any convincing argument to sue. Even the one you proffer it seems could easily be argued out of court.

Here check this one out and tell me if this person has grounds to sue:
Penny Wood

Roger Hicks · 06-01-2005

Depends on where you live.

Cheers,

Roger

FrankS · 06-01-2005

It's weird that on such a basic question, there is no answer. These photographers sold prints for profit, with images of people for which there are no model releases.

Little Prince · 06-01-2005

..."Inscription on the coffee mug saying "warning: the content might be hot". It makes me feel stupid and think the whole society is stupid."

Can't remember the number of times I have commented on this to other people. It's just funny. But when you see 'do not put children inside' on a washing machine, you start getting concerned

. Only logical conclusion one can draw is that the IQ of the average person in our society is about that of a 3 year old. (note: that's not too bad if the average age is 3 years

). The bright side is I can consider myself a genius. Let alone children, I wasn't even going to put a dog inside the machine.

"People can look at you on the street and take pleasure in it if they wish, this is just taking that a bit further."

Ah! That keeps happening to me all the time

. Only no one's taking it any further.

BTW, sorry for all the OT nonsense. It's a rainy day here and I'm bored.

jan normandale · 06-01-2005

I'm not a lawyer. Still the law usually settles issues by allocating some type of compensation usually money. If the defendant doesn't have deep pockets the matter usually ends up with a 'wrist slap' and don't do it again. If a lot of money is available then the game changes. Thats why McDonalds has a warning on coffee and the local diner doesn't.

It's all about money. Sorry.

Jan

Pherdinand · 06-01-2005

I know that the rules are different everywhere. What I was talking about is how I feel myself about somebody doin' it. Just moralities.
As said above, if it's in a derogatory way of course the subject has all the moral right to take the step.
But then, i would ask: There are stupid commercials involving children. Fifteen years later the grown-up kid might feel stupid that he/she played in such a commercial. I myself thought about it and I would feel stupid now if i was playing in the AH meet-check commercial (just an example) in place of the small girl. But what can SHE do about it? Her parents agreed, they have got some $ for it (i hope), but what about her?

And there are many more cases where the regulations, the laws make stg perfectly ok but i would question it morally. Participating in an average public street photo of a great photographer, I don't think it's one of them.

Pherdinand · 06-01-2005

And i don't mind about McDonalds being sued, not at all

Pherdinand · 06-01-2005

Quote:

Originally Posted by FrankS

It's weird that on such a basic question, there is no answer. These photographers sold prints for profit, with images of people for which there are no model releases.

True, Frank. However, if my house burns down and I stand there outside in my underwear with smoke on my face, the evening news will be happy to show the images with or without my consent. They make big bucks out of it. AND, they show me in a not too flattering way. I'd still prefer to see myself at an exhibition of HCB instead of the evening news.

Sean Reid · 06-01-2005

Quote:

Originally Posted by flamingo

So, now, years later, Winogrand's estate, and the agent have made a combined total of four hundred and fifty large off of a photograph of you. You never knew anything about this, the fact that you were the subject of the said image and it was your image that in fact made it sell so well. Is this considered "commercial use" ? I would think that "commercial use included any use that made a profit, no ?

I should have said in my first post that the law I'm referring to applies in the USA. With respect to USA laws, the usage you describe above is not commercial even though the prints and books, as art, may make money. But the moment someone uses a Winogrand photo to sell breakfast bars for busy people...commercial use begins. But again, this is the law as written (as I understand it having had to deal with these issues for many years). A judge or jury will sometimes make decisions that don't seem to follow the law as written.

Again, Bert Krages is a good resource for this.

Cheers,

Sean

Pherdinand · 06-01-2005

Quote:

Originally Posted by flamingo

So, now, years later, Winogrand's estate, and the agent have made a combined total of four hundred and fifty large off of a photograph of you. You never knew anything about this, the fact that you were the subject of the said image and it was your image that in fact made it sell so well. Is this considered "commercial use" ?
I would think that "commercial use included any use that made a profit, no ?

No, i would disagree. If they made a pic out on the street and I'm on it, and it turns out to be such a good photo, even if because of me looking funny, that brought them hundreds of thousands, i say good for them. I will not try to go sue them to get "my share" of something I never worked for. My pure existence does not empower me to gain $ from everything it's related to me.

Now, if they took a photo of me in my home in that bubble bath with Milla Jovovich, that's another story

(Sorry this idea comes back in my brain.) I'd probably pay for that photo myself.

flamingo · 06-01-2005

Quote:

Originally Posted by RayPA

Walker Evans held onto his subway portraits for 20 years out of fear he would get sued, so I don't think the times have changed much. It was a concern back then, too. In reality you can sue (or atttempt to sue) anyone for anything. I think the reason why these photographers haven't been sued in the past is because it has been so difficult to set a precedent for it. Setting a precedent for a suit would open a can of worms. There really isn't any convincing argument to sue. Even the one you proffer it seems could easily be argued out of court.

Here check this one out and tell me if this person has grounds to sue:
Penny Wood

No. I would say she has no grounds to sue. She signed an agreement in return for reduced prison time.

And Ray you bring up a point. Walker Evans apparently took deliberate action and was welll aware of what he was doing (using peoples photos wothout their permission) for profit or fame. In other words, to put it bluntly, he was sneaky. Yes he used to rig a camera inside his coat with the lens poking through a buttonhole and using a shutter release, would seize the moment. Was it ethical ?

aizan · 06-01-2005

sure. the sneakiness was to get natural expressions.

James Burton · 06-01-2005

Quote:

Originally Posted by Pherdinand

What's the result? Inscription on the coffee mug saying "warning: the content might be hot".

Tee hee hee. Put a DYMO sticker on the front of your camera saying

"WARNING: your likeness may appear in ART"

(add the word 'pseudo' if you suffer from lack of self-confidence like me.)

James

RayPA · 06-01-2005

Quote:

Originally Posted by flamingo

No. I would say she has no grounds to sue. She signed an agreement in return for reduced prison time.

And Ray you bring up a point. Walker Evans apparently took deliberate action and was welll aware of what he was doing (using peoples photos wothout their permission) for profit or fame. In other words, to put it bluntly, he was sneaky. Yes he used to rig a camera inside his coat with the lens poking through a buttonhole and using a shutter release, would seize the moment. Was it ethical ?

On the Wood issue, I agree. I brought her situation up because I was discussing it the other night with some friends who felt she was misled. Apparently, (and this is not covered in THIS article) she was led to believe that her image would be used in a low-key fashion and only at some local drug treatment programs. The posters ended up being plastered all over her home town and are now out on the 'net, causing her public humiliation.

Her situation is not too far removed from images we might take and post here of a homless person or any other individual whose condition, or situation, when uploaded to a publically viewable website would cause them shame or humiliation. That picture that we took of that kissing couple on a park bench, who we thought created a romantic composition in our viewfinder, could in fact be a couple having a clandestine affair. If our posting that image here creates a catastrophic situation for one or both of them, are we liable. (I'm not asking for an answer—just adding a wrinkle to the discussion).

Anyway...good thread.

TPPhotog · 06-01-2005

Quote:

Originally Posted by flamingo

....... And Ray you bring up a point. Walker Evans apparently took deliberate action and was welll aware of what he was doing (using peoples photos wothout their permission) for profit or fame. In other words, to put it bluntly, he was sneaky. Yes he used to rig a camera inside his coat with the lens poking through a buttonhole and using a shutter release, would seize the moment. Was it ethical ?

I consider taking street shoots in public places as fair game as long as the pictures not not intended for commercial use as in advertising a product or to mis-represent those people in the picture.

Using a hidden camera is as un-ethical and immoral as hidden speed cameras. I always have my camera in full view, which I consider is fair game. If people don't want to be photographed they have the option to turn away or move out of shot.

I have many pictures stored and on use with the local photographic archive. They include the area and the people of the area. As such any pictures exhibited or sold are as pictures of the area even if one person is the focal point. Happily in the UK for the moment that is acceptable use.