Legal Considerations for Street and Documentary Photography

This isn’t advice on how to conduct yourself while shooting street photography. That’s a topic which could easily fill many posts on its own. Rather, this is about the broad legal landscape – the dos, the don’ts and the greys – for those interested in documenting life as it happens.

Street photography is still a controversial medium and privacy concerns are arguably more important now than they’ve ever been. Before hopping over event barriers, understand the risks. Knowing what you can and can’t do ahead of time will enhance your photography and ultimately help you get the shot.

First things first…

Can I take someone’s photo without their permission?

The short answer is yes.

While it depends where you are in the world, in America it is absolutely legal to photograph anything in public spaces, including people, children, police officers, government officials, and buildings. People often think you need their consent, but as long as you are standing on public ground and your subject doesn’t have a reasonable expectation of privacy, your ability to take their photograph is a constitutionally protected right.

That said, every situation involving you, your camera, and someone else should be approached thoughtfully. Two major caveats:

1. The legal definition of “public spaces,” and
2. How you use their photograph afterwards.

So, what is a public space?

Legally, public spaces are areas open or accessible to the public where there is no expectation of privacy, including streets, public parks, and sidewalks.

Keep in mind that being outdoors or surrounded by people indoors does not mean you’re in a public space. Places often thought of as public, such as shopping malls, amusement parks, airplanes, theaters, and performance venues, can be private property. On private property, it’s the owners that make the rules.

However, just because land is publicly-owned does not make it a public space. For security or logistical reasons, military bases, crime scenes, airports, museums, energy installations, courthouses, public hospitals, and certain landmarks or government facilities may be physically and photographically off-limits.

Before making plans to shoot in a particular location, do your homework: read the fine print on your event ticket, visit the venue online, or call ahead of time to understand any explicit restrictions.

When do I need a model release?

Usually, never (for street photography).

You will need a model release if you end up using their likeness to imply that they endorse a certain product or statement. If there is a chance that you might license the image commercially, make sure to obtain formal consent from your subject.

Can a person or police officer make you delete their photograph?

No, no one can require you to delete your photographs or confiscate your equipment, unless authorized by a court order.

According to US copyright law, any image you create is your intellectual property, with creation defined as the moment your finger presses the shutter. Police officers may prevent you from taking photographs in certain situations that interfere with legitimate law enforcement operations. The ACLU has an excellent article on the subject:

“If stopped for photography, the right question to ask is, “am I free to go?” If the officer says no, then you are being detained, something that under the law an officer cannot do without reasonable suspicion that you have or are about to commit a crime or are in the process of doing so. Until you ask to leave, your being stopped is considered voluntary under the law and is legal.”

– American Civil Liberties Union

The flip side is that it’s not unreasonable for someone to be upset at having their photograph taken. Irrespective of whose side the law is on, be respectful and move on if your subject is uncomfortable. Responding confrontationally goes against the very ethos of documentary photography. Document, do not disturb.

Photography on subways, buses, and trains

This issue is much murkier than it may seem, given the fantastic body of work from street photography in these contexts.

Largely, it depends on the specific public transit operator as well as the local regulations. For the most part, personal, handheld photography equipment is allowed (barring tripods, external flash, etc.) so long as you don’t block public paths, or harass other passengers. But there are some agencies that ban photography outright.

For example, in San Francisco, BART bans any photography (commercial or otherwise) without a permit while MUNI allows for non-commercial, handheld photography. Look for signage to indicate whether photography is off limits and research the particular transit operator beforehand.

Photography in airports and on airplanes

Anything more than taking casual snapshots in the airport requires a permit and shooting near security gates should be completely avoided. Beyond the checkpoints, TSA defers to specific airlines to enforce camera policies.

Onboard photography is another grey area.

Photography as a protected form of speech does not apply in the air, since airlines are all private companies. Check the safety card on the aircraft or the carrier website to better understand what devices are allowed. While certain airlines are more permissible than others, taking pictures of crew members is never permitted so be very careful where you point your camera lens! Focus on shots out of the window instead of the cabin and treat your camera as you would any other electronic device onboard.

Ethical considerations for stigmatized populations and final thoughts

Be mindful of relying upon the homeless or mentally ill as a shock factor to make your composition interesting or dynamic. I find a good portion of street photography involving stigmatized people to be borderline exploitative. Your photography should be able to stand on its own. Think of yourself as a social anthropologist: any inquiry must be undertaken ethically and with respect for your subject. Be honest in your approach and what you present to your viewers.