Written by Steve Rosenblum
I am an amateur photographer whose main focus is on candid photos of people, especially on the street. There are fewer opportunities to do street photography in smaller cities and towns then in large urban centers. I have found that large public gatherings, such as fairs and festivals are places where there are more opportunities and people expect photographers to be present. The Ann Arbor Street Art Fairs are among the oldest in the United States and I have been going to them since they started usually with my camera. The fairs are huge and tens of thousands of people attend. My interest is far more in the people than the art—I tend to take photos of people walking around, looking at and interacting with art, and also of the artists near their booths and interacting with each other. I should emphasize that this event occurs on the streets of downtown Ann Arbor, and the booths, artists, and patrons are all in public on the streets.
Today I had an upsetting interaction with an artist. She is a photographer who has a booth on the street. Like most of the artists she displays her "art" both inside her booth and it hangs on the outside of the booth. On the outside of her booth she had placed some small (3–4 inches in length) photos that had been printed on glass or other clear material and then framed in wire so they could be hung on a wall or outside. They were fluttering in the wind. I was not attracted to these items as artwork, but did like the juxtaposition of the people walking by on the street with these in the foreground, so I stepped up to the outside of her booth and shot a photograph with her items in the foreground and people blurred in the bokeh of the background. I then continued on my way and took another photo of an artist sitting outside of his booth with a large photograph displayed on the outside of his booth. This was taken from the middle of the street 15 feet from that booth.
A woman approached me and demanded to know why I had taken a photo (the first one) of her work. I explained that I was an amateur street photographer and took the photo for my own use without any intention of commercial use. She asserted that her work is copyrighted and that I have no right to photograph it, that I was a thief who was "stealing" her work, that she is a commercial photographer who is "not here to give it away for free," and that what I was doing was "immoral." I stated that she and her work were in a public place (it is a "street" art fair), and that I have a right to photograph anything on the street including her work if it is part of my photograph. She said that the photo she had just seen me take from the street of an artist sitting in front of his booth with his worked displayed on the outside was similarly protected, that I was wrong about the law and repeated that I was a thief and what I was doing was immoral. I tried engaging her again a few minutes later after she asked me as I walked by "Are you going to steal more stuff?" She asserted that I am legally required to ask permission to take any photograph that includes an artist's work even if it is in public, and that, in fact, since she was paying for the booth she owned the space.
I continued on my "immoral" way feeling pretty angry about it as I have always been a huge supporter of artists and their work, and have bought my fair share.
As TOP has many commercial/fine art photographers who participate as well as a few lawyers who represent them I would like to ask the commentariat their take on this. My understanding is that people and things that are in public places may be photographed without permission or consent so long as the images are not used for a commercial purpose. It may be considered courteous by the artist to ask for permission when possible, but it is legally not required, and that would, in fact, eliminate the art of candid street photography in most places. What public space does not have any copyrighted imagery in it? I realize that this has become a big issue in Europe (where the nighttime lighting of the Eiffel Tower is now considered a copyrighted artistic work), but I didn't think that had happened here. If I am wrong about this I would like to know and will respect the law, but in that case I think I will need to give up street photography.
Steve
©2015 by Stephen Rosenblum, all rights reserved
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Featured Comments from:
Kusandha Hertrich: "I recently got in to a big debate with my girlfriend about the morality/social responsibility associate with street photography. This was with regard to a picture I had taken while walking around that included a child. I outlined my rights as a photographer from a legal perspective (based on my knowledge/understanding), but she was not interested in the legal aspects and there was no understanding reached between us. And that was with someone I know and who actually cares about my opinion. I've had people confront me a number of times, and some times just for taking pictures on their block that included parts of their houses. The worst case I've had to deal with was a security guard running across the street from the building he works in to tell me I couldn't take pictures of the open loading docks of his building. I wasn't even on their property. He called his manager out who then tried to call the police. I laid out the law as much as possible, but it came down to 'TERRORISM!' on their part. I was on my lunch break and didn't have the time to force their hand on it. I walked away angry from that one. I try to be polite, show them what I'm doing if I feel it will help, and try to stand my ground as much as possible.
"Educating people about our rights as photographers has become a part of the work almost. It's just sad that someone who claims to be a commercial photographer would be so difficult."
JK: "Over the past few decades I've pursued street photography in about 40 different countries, mainly in Asia but also including the Middle East, Europe, and North America. I'm pretty low-key and seldom encounter any problems. When I do, I'm almost always able to calm things down by explaining what I'm doing and showing them what I'm shooting. Once in a great while I'll delete a frame or two if someone insists. I like to leave on good terms.
"The sole exception is the U.S. Among many, many nice experiences there over the years, I've had maybe half a dozen real confrontations, usually over completely trivial things. Half the time the person complaining wasn't even in the frame. Nothing I can say or do seems to make the slightest difference—their reaction seems fed by pure paranoia and hostility. I won't venture to guess why this might be. I'm just very glad as a photographer that I live and work elsewhere."
photoburner: "I was the semi-official unpaid photographer for the public utility that I worked at. I was sent out to take photos of one of the utility's buildings one day. While standing in that building's parking lot, which was adjacent to a public university hospital, I was approached by a fellow and ordered to not take photos of the hospital since I might capture one of their employees in the image!
"This fellow looked like some administrator on his way out to lunch and he had a woman in tow. My guess is this was some display of male dominance made to impress the female.
"I proceeded to educate him on First Amendment rights: that I was standing on public property, that the hospital itself is public property and that I could legally take photos of anything that I could see. He scurried off after apologizing.
"I could have just pointed out that I was not taking any photos of the hospital property but he irritated me with his bumptious behavior.
"I would not back down under any circumstance; getting detained seems to be the equivalent of hitting a legal lottery jackpot."
Jason (partial comment): "During an art fair, my father had a booth, and a guy with an SLR and macro lens started shooting my dad's work. My father objected; the guy huffed and puffed and said it was his right as he was on public property. I corrected the man, and pointed out this is was a private shopping mall. I found the organizer of the event, and they brought mall security over to shut him down.
"Turned out we found one of the images on a local travel agency's website, through TinEye. We alerted the agency that said they bought it from a friend of one of the employees. We discussed the situation, showed proof, and the agency not only paid us (and demanded money back from the original 'thief') but commissioned my father to produce a custom poster with the image."
Trecento: "...The moral high ground is a poorly thought through legal argument around dimly understood copyright and moral rights issues. It didn't have to make sense, by the way. The purpose of the quasi- legal argument is ego defense. So long as she didn't have to be the bad guy who was getting bent out of shape over nothing, it was okay. This is, by the way, why arguing back never works. The reasoning is irrelevant, and pointing out it's illogic means mounting an attack on the other person's ego defenses. Another means must be found to defuse the situation. It cannot involve the other person admitting they are wrong...."
[Like many "partial comments," Trecento's entire comment is interesting; see the Comments section for the full text. —Ed.]
JG: "The law is on your side. You are correct and she is wrong. Her copyright does not restrict you from taking photos of her artwork in a public, but to a limited extent, only what you can do with your photos afterward.
"When I was in NYC earlier this year, I had a similar encounter with a group of kids who were goofing around on the corner. They were having none of this, however, so I waved over the beat cops standing on the opposite corner and had them explain the law to them. They also pointed out that apart from me, the deli behind them was photographing them using a surveillance camera, and this was also legal for the same reason.
"Their response to all this was to immediately pull out their cellphones and take photos of me. Turnabout is fair play, I suppose, so I smiled wanly as they stuck their cameras in my face, paparazzi style...
"My preferred photography, however, isn't street photography, but nighttime photography of urban areas. I'm rarely ever hassled by people when doing this (because they're rarely around these areas late at night!), but I have noticed I am increasingly hassled by police officers, at least here in the Phoenix and Scottsdale areas.
"Up until 2012 or so, they would smile and wave as they drove past whenever our paths crossed. Since then, however, this has changed markedly. In fact, so far this year, I have been stopped and questioned by the police on three of every four outings I have made to downtown Phoenix. These encounters have become increasingly unpleasant for both of the parties, because I now refuse to show the police my I.D. or answer any questions so long as I'm not being formally detained or placed under arrest. As you may suspect, this approach is usually not received well and has resulted in my being subsequently subject to all manner of harassment, up to and including being issued bogus parking tickets and having my car exhaustively inspected to insure that it's roadworthy. On one particularly memorable occasion, the police proceeded to follow me around for 15 minutes and ruin every photo I tried to take by shining their car's high beams and A-pillar searchlights on the scenes.
"I've contemplated filing complaints about this practice, but since the board that reviews them isn't independent of the police, I have been cautioned by several people who have experience in these matters about the potentially negative consequences of doing so. In the meantime, I've equipped my tripod with a Go Pro camera and am now recording all my photographic outings, just in case...
"Needless to say, being a middle-aged white guy, this isn't something I have experienced before and as a result, I now have a much better understanding of what minorities have been complaining about for decades with regard to their dealings with the police."
BH: "James Maher's approach above seems to work best. If someone is approaching me I know right away that they either want to talk shop, or want to know what I'm doing. I assume it's the latter because there just aren't that many photographers out and about around here. So the second I sense that someone is coming my way I head right towards them, smile, perhaps a handshake and a casual 'Hi, how are you?' and assume a really relaxed, casual posture. This pretty much turns the intensity of the person down by about 90%, and I'm more than happy to talk to them about what I'm out shooting and why.
"People don't always see like photographers see. I had a gentleman come out of a bar early on a Sunday morning; he was there cleaning up from the previous night. He couldn't figure out why I was shooting the front of his bar. I started pointing out the sunlight hitting the flags he had flying, what I liked about it, and you could see on his face that he'd never considered such a thing worth photographing but it clicked for him once I pointed it out. We talked for a minute and he gave me a 'tour' of the bar and told me a bit about its history. I offered to give him a print if I got a usable shot out of the deal, and he invited me to come by for a beer some time. We parted with a handshake and a smile.
"Figure 10% of the time you're going to get a person who is determined to Tell You What You Can't Do, no matter what. In that case it's usually pretty obvious from the get go, and I don't even waste my time. Have a nice day, not worth the aggravation. On a side note, it's amazing what being given an assignment can do for your perspective on all this."
