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In general, photography is lighthearted. The vast majority of camera owners are in it as a hobby, whether as a form of relaxation or a way to expend creative energy. Very few think about the legal repercussions of photography, which is why it can be so frustrating — and even frightening — when something goes wrong.
Whether you’re snapping photos as a true beginner or following in the footsteps of professional shutterbugs, legal issues are never more than one mistake away. It only takes one misstep or lapse in judgment for the stresses of the law to suck the fun out of photography.
Don’t wait until it’s too late. Get a head start on the legalities so you never have to worry about dealing with these complications.
Disclaimer: As an American, most of my exposure is to American law. Legality may differ for you depending on your country. That being said, I’m not a lawyer so do not misconstrue any of this as legal advice. If you have any questions or a hint of doubt, ask a local licensed lawyer. This article is more for the purpose of awareness, to get you thinking.
Shooting People on the Street
Next to food photography and landscape photography, street photography is one of the hottest genres on the Web today. Just look at these next-level Indian photographers to get a sense of what I’m talking about. Street photography done right is simply mesmerizing.
But lots of people don’t like having their pictures taken without their permission. There are times when you’ll be snapping shots in public and people will get rude with you, yelling at you to stop. Some may escalate even further, threatening to sue you if you don’t delete those photos right this instant.
Fortunately for you, their case won’t hold up in any sane court of law.
It’s illegal to take photos of people when they have a reasonable expectation of privacy. For example, when they’re in the safety of their own homes, when they’re in a hospital room, or when they’re sitting on a toilet — even if the restroom is a public one. But when they’re out in public, that reasonable expectation of privacy ceases.
Some states, like Texas, make it illegal to take non-consent photos (whether public or private) if it’s with an intent towards sexual desire or gratification. Otherwise, photos taken in public are acceptable within the law as long as the resulting photo isn’t used in a commercial way. For that, you’ll need a model release form.
However, just because it’s legal doesn’t mean you should always take the shot. If someone really doesn’t want their picture taken, the decent thing to do would be to respect their wishes. Wait for them to pass or skip the shot altogether.
Watermarks and Copyright Infringement
If there’s one fear that’s shared by all creatives, it’s the fear of copyright infringement. What if you woke up tomorrow and learned that someone else has been selling your photos for a lot of money? Wouldn’t you feel slighted? Betrayed? Disrespected?
Unfortunately, many people — even creatives — have trouble understanding the rules of copyright. We have a in-depth guide to image copyrights, but in case you don’t have the time to go through all of that, here are the bullet points.
It’s not enough to just credit the creator. You need explicit permission from said creator to use their work in the manner that you want to use it. Sometimes this agreement will involve payment or royalties, but not always. However, without their permission, you’ve infringed on their intellectual property rights.
So the next time you want to get a beautiful photograph printed, make sure you have permission from the creator to print that photograph.
Want to learn more? Here are a few quick resources on copyright law to help you understand what’s allowed and what isn’t.
Licenses are predetermined permissions. For example, many photos are licensed under Creative Commons. A Creative Commons license explains what you can and can’t do with that photo. There are other kinds of licenses too, and each one sets forth a different set of permissions. If you don’t abide by the license, that’s copyright infringement.
While it may seem counter-intuitive to give your work away for free, there are several benefits to licensing under Creative Commons. You may want to consider it if you haven’t already.
And no, “Fair Use” is not always applicable. The Fair Use clause allows an exception to copyright law, but only if several criteria are met: the use is primarily educational, the resulting product is informative rather than creative, how much of the source material is used, and whether the original creator benefits from said fair use.
Most importantly, you have a copyright as soon as the work is created. There’s no need to obtain an official document or certificate, and you don’t need to watermark your images in order to prove anything. That being said, watermarks can help deter image thieves.
Running a Photography Business
Some people may decide to elevate their photography hobby into a photography business. A good majority of these people will realize that photography isn’t as fun when it’s a business as when it’s a hobby, but the few who succeed will go on to build a reputation and earn a respectable income.
But there’s one hiccup that really should be avoided: do not operate as a sole proprietorship.
If someone comes up to you, offers to pay $500 for a portrait shoot, and writes a check out to your personal name for services rendered, then you’re legally a sole proprietorship. All income, expenses, assets, and liabilities are under your personal name. You are held responsible.
Which means that if somebody ever decides to sue you, maybe for breach of contract or invasion of privacy, then you will personally be held accountable. If you lose that lawsuit, all of your assets will be at risk, including your house, your car, your bank accounts, etc.
But if you register your business and operate as a Limited Liability Company (LLC), then you can separate your business activity from personal activity. Your LLC will have its own set of income, expenses, assets, and liabilities, and if one of your clients decides to sue you, only the LLC’s assets will be at risk. Your house, car, etc. will be safe.
In other words, registering a business limits your personal liability and this is a good thing. The only downside is that there’s paperwork, there’s a fee to open an LLC, and you have to abide by certain rules and regulations. However, the benefits greatly outweigh these inconveniences.
Also, don’t forget to pay your taxes. Traditional employees have their taxes taken out of their paychecks, but as a self-employed photographer, it’s your responsibility to pay the government. For most people, this means paying an Estimated Quarterly Tax and filing different forms when reporting your income.
Filing taxes as an LLC can get tricky, so don’t be afraid to hire a Certified Public Accountant (CPA) to help you out. After all, the whole point of an LLC is to minimize legal trouble, which means you really don’t want to tick off the Internal Revenue Service (IRS)!
Models, Contracts, and Consent Forms
While we’re on the topic of litigation, let’s talk about the most common and effective way to mitigate these lawsuits: a contract.
If you’re doing any kind of commercial photography — simply put, if you’re getting paid for the photos you take — then you absolutely need a written contractual agreement between you and the client. If you skip over this, your life could potentially be ruined.
Contracts exist so that both parties can agree on expectations. Here’s what the client expects from you, and here’s what you expect from the client. Both parties sign the contract as proof that this agreement was reached. Verbal agreements provide zero evidence, which is why this contract must be in written form.
At minimum, a contract should contain: who are the two parties, what is expected of each party, where will the photos be taken, when will the photos be taken, and why are the photos being taken. The contract should also stipulate potential recourse in case these expectations are broken (such as not being obligated to pay for horrible photos).
But if photography is a primary source of income for you, your contracts should really be drafted and approved by a licensed attorney.
One last thing: when a person is in a photo and that photo is used commercially, that person must sign a model release. A model release is written proof that the model consented to having their likeness used in that photo for commercial purposes. Without a model release, that person could sue you.
When in doubt, sign a model release. It can only protect you.
Private Property and Shoot Locations
Let’s say you have an awesome idea for a series of photos, but you can’t find the right location to stage said photos. Maybe you need a sterile environment like a hospital, or a derelict environment like a rusty warehouse. Or maybe you want to take a photo of a particularly intriguing building.
Before you go ahead with your plans, there are a few things you must keep in mind.
When shooting from a public location, the same rule applies to building exteriors as it does for people: if there’s no reasonable expectation of privacy, you can shoot it, but there is one big caveat.
If the final shot includes someone else’s creative work in the form of a trademark, a sculpture, or a water feature (e.g. waterfall, fountain, pool, etc.) then you must get a property release from the property owner. A property release is also necessary if you want to shoot on-location and that location is on private property.
Not having permission to shoot on private property counts as trespassing.
Keep in mind that “open to the public” does not necessarily mean “public property”. Malls, movie theaters, theme parks, museums, airports are all examples of places that are private property but open to the public. If you want to take photos at places like these, you must get a property release.
And even if you are shooting on public property, there are certain restrictions. For example, your photography cannot interfere with the ability of others to enjoy said public property. You cannot block access to hallways or areas. Many places also forbid the use of tripods and stands.
Better Safe Than Sorry
These legalities aren’t meant to stifle your creativity. In fact, as strange as it may sound, they’re meant to protect you. Sure, they may prove inconvenient from time to time, but ultimately it’s for the good of all involved.
It’s in your best interest to learn your rights as a citizen and as a photographer. Know what’s acceptable, know what’s not, and rest assured knowing that you won’t ever be caught off guard with an unforeseen lawsuit.
Have you ever gotten into legal trouble with your photography? Are there any other potential issues that I missed? Tell us about your experiences in the comments below!
Image Credits: Man With Many Headshots Via Shutterstock, Subway Woman Silhouette Via Shutterstock, Swamp Photographer Via Shutterstock, Bird’s Eye Riot Via Shutterstock, Pen Signing Form Via Shutterstock, Self-Employed Taxes Via Shutterstock, Model Photoshoot Via Shutterstock, Public Shot In Mall Via Shutterstock