You Have No Expectation of Privacy While in Public

After discussing street photography at length this week, I’ve concluded the photographers who are its proponents are a victim of the majority of people not knowing this one right protected by the First Amendment.

And that Street Photography is a kind of documentary photojournalism.

From the ACLU:

  1. “As a form of expression, photography is protected in the U.S. by the First Amendment to the Constitution.
  2. “When in public spaces where you are lawfully present you have a First Amendment right to photograph anything that is in plain view. That includes pictures of federal buildings, transportation facilities and police. Such photography is a form of public oversight over the government and is important in a free society.

Most people don’t know this.

They know you can’t be outside publicly drunk. They know you can’t even carry an open container of an alcoholic beverage. These are known laws.

They know you can’t walk around naked in public. There’s no sign needed to remind them.

But they don’t know about the right to photograph anything that can be seen in public, and that there is no expectation privacy in public. A photographer, a video crew, anyone can photograph you and no consent is needed.

No one is required to even let you know they’re recording you.

No one has the right to prohibit their image from being created.

  1. Not if you’re famous.
  2. Not if you’re religious.
  3. Not if you’re shy.
  4. Not if you just don’t want them to.
  5. Not if you’re having a bad day.
  6. Not if you tell them not to.
  7. Not if you’re President of the U.S., CEO of a major corporation or head of your household.

Kids, too. With or without the parents in the photograph. Even without their permission, photography is legal. There’s no expectation of privacy in public, kids included.

No person creating imagery is required to stop when you enter their view, or your kids, your pets do–everything and everyone is fair game if it can be seen from a public place.

Even inside your house, if someone wants to photograph you through the windows, you have the right to close the blinds to create privacy, but you don’t have the right to stop someone from photographing what they can see while you’re in public view.

Even inside public cafes, there is no expectation of privacy unless the business expressly posts, “No Photography” like seen in casinos.

Court cases have been fought and the photographer always wins. There is no expectation of privacy while in public.

But people don’t know. They think since they’re in the photo, they own some piece of it. They don’t.

Even pop stars who have taken and used photographs of themselves made by fans or photographers have been sued for copyright infringement, it doesn’t matter that they’re the subject of the photograph. The photographer owns the image.

What can a photographer do with a photograph that you’re in?

  • They can post it online.
  • They can print it and hang it in their home.
  • They can publish it in a book or magazine.
  • They can run it in a newspaper.
  • They can print it, display it and sell it at a gallery.
  • They can put together a museum exhibit.
  • They can make millions of dollars off the sale of it.
  • And you have no right to any proceeds from its sale. It’s art they’ve made and that they are selling.

What can’t they do?

  • They can’t use it for advertising or other commercial purposes without a signed release, so they cannot use it to sell Coca-Cola or Snicker Bars or anything else.
  • They can’t use it to illustrate a story with sensitive or difficult subject matter, like if they were illustrating a magazine story on meth addicts, they couldn’t use your photograph without your expressed written permission that you knew it would be used in this way with this type of story, or you could sue for defamation of character.

But people don’t know.

Fear is sold in the media 24/7 on cable news. Fear keeps viewers tuned in. The world is the safest it’s ever been, yet it feels more dangerous than ever.

So, people who don’t know the law about photographing in public assume it must be a creep, a pedophile, a criminal or deviant of some kind making photographs of them or their kids. Because why else would you want these photographs of strangers?

There is a form of documentary photography known as street photography.

But people don’t know.

Add together the lack of knowledge of the law, and the lack of awareness of the art of street photography, and you have a fearful society worried about they guy or woman with a camera making photographs in public.

Alfred Eisenstaedt’s Photograph

We, as photographers, need to change two things:

  1. Make people know that there is no expectation of privacy while in public.
  2. Make people know that street photography is a form of photojournalism.

Those are the fundamental reasons people are afraid of being photographed, they think only sketchy people photograph in public, since they can’t imagine making photographs of people they don’t know. They don’t realize the greatest photographs of all time have included moments made of people in public, like the kiss in Times Square by Alfred Eisenstaedt after World War II ended.

We have to educate the public about what to expect while in public.

And photograph their story. We’re documenting history.

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Check out my YouTube Channel of Photography Talks: my 6×6 Portraits Blog (you’re here) and my Daily Photography Podcast. Thanks!

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