Can I Take Your Picture?

By Douglas Hollmann, Esq.

For your birthday recently, your aunt gave you one of those newfangled electronic cameras, and now you’re photographing everything in sight. You bought yourself an upscale printer too, and you’re papering your house with 8 X 10 glossy prints of your neighbors, people at work, birds, and close-ups of flowers. One day someone comes in and tells you what a sensitive artist you are. They suggest you put a portfolio together and show it to the people setting up a photography exhibit at the local craft center. You pull your best photos together, including one of your neighbor in his t-shirt as he bends over to scoop up grass clippings, a candid shot of a woman in a pink flowered bathrobe putting out her garbage, and a picture of a lovely colonial house on a nearby street.

The exhibition accepts your photos and people talk about them in your community. The neighbor you photographed picking up the grass clippings walks over and says that he wants to get paid if you sell the photograph of him. The woman in the bathrobe sues you for libel and invasion of privacy. And the elderly lady who owns the colonial house calls to say you had no right taking that photo without her consent. What is going on, you wonder? What should you have done?

The problem with the photo of the woman in the bathrobe is that her picture may be considered defamatory, harmful to her reputation in the community. You thought it was a candid snapshot; she does not agree. This situation can arise in many different ways, and you have to be careful that someone can’t claim your photographs are defamatory, no matter what use is made of them.

If you sell your photographs to a newspaper and the subject is newsworthy, the photographs should be protected by the First Amendment. If your photographs are used commercially, however, rights of privacy arise if the people or the property can be identified. But was the exhibition that accepted your pictures a commercial venture? If a prize was awarded it might be, or if the prints were for sale. And if you decide to sell the photographs to a publication to be used in advertisements, they would definitely be commercial. In these kinds of cases, you should get the person or property owner to sign a release to protect you against a lawsuit.

It turns out that the picture of the neighbor did not identify him, so he cannot claim his right of privacy was violated. And the woman who owns the colonial house cannot complain when there has been no commercial use of the picture of her home. But if you sell the photo of her house to a real estate firm for their brochure about your town, she may have a claim.

So if you get the camera bug and start exhibiting or selling your photographs, talk to a lawyer and get releases where they are necessary. Most people will sign them, and they’ll save you a lot of trouble later on.