I read a comment this morning, in connection with my recent blog about Eeyore's Birthday Party, asking me to explain the process of getting the approval of people we photograph on the streets. It's actually a fascinating subject for me and one that seems "highly flexible" depending on the operator and their intention.
First, let's talk basic law in the U.S. (different in different parts of Europe and Asia!!!). As a photographer you are free to take photographs of anyone in a public place. No one has a reasonable expectation of privacy if they are in public. This includes grisled old men, very beautiful women and even children. So, on the face of it, you can go about shooting people as they walk down the sidewalks and cross streets and play Frisbee in the park and as they sit under the umbrellas of the sidewalk tables of cafes which have put tables on the public right of way, which means the public sidewalks.
Here's what you can't do: You can't photograph people on private property who can't be seen from public property. You can stand in the street and photograph the man standing in his front yard, if you can see the image from the street. But if he is behind a fence you cannot breach the fence to take the photo. Nor can you photograph, without permission, in restaurants, bars, aforementioned cafe interiors, book stores, coffee shops, etc.
The government can claim that certain areas cannot be photographed because of national security concerns and that makes a certain amount of sense......as long as you can't just print off the same locations from Google Earth or Google Street View. Lately, when the government over reaches they've been pushed back by the courts.
Now, all of this is predicated on the idea that your photograph will only be used as "art" or as editorial content. Things that happen in public can be newsworthy or have artistic merit. As soon as you get ready to sell the photo of a recognizable person for any commercial use you are in a whole new ballpark, and one that might get your fingers burned. The image above was made during a rambling walk in Rome. I've used it as art piece for articles meant to illuminate or instruct but have never licensed the rights to use the image for any commercial venture. I could not do so without a signed model release and valuable compensation paid to the person pictured.
So, here're the rules: Okay to photograph person in public. Okay to show photograph. Okay to use photo for art and editorial (magazine/newpaper) use. Not okay to shoot on private property and where a subject has a reasonable expectation of privacy. Not okay to shoot in the ladies locker room at the Four Seasons Hotel or to sell any of the images for any commercial use with "express" permission (hopefully backed up by a model release.)
So, how do I shoot in the streets? In the case of Eeyore's Birthday Party I walk thru the crowd of people in costumes. If I see one I like I walk up to them and say, directly, "I love your costume. Can I take a photograph?" Usually they say "yes." If they say no I walk away. I'm not there covering news and I don't think I have a right to violate the whole social contract against harassment just to please my artistic inclinations of the moment.
Sometimes I'll see something I like and I will try to make eye contact with the person if I am too far away to speak to them. Doesn't happen often because I'm most likely to be using lenses shorter than 85mm and that puts me close enough to be sociable. The deal I make with myself and the rest of society is this: If I'm part of society I need to understand that there are some unspoken rules that we all (to some extent) share. One of those is to respect a person's sense of security and safety. Another is to respect a person's circle of comfort and finally a respect for a person's ability to control their own public image. I may have the right to do something or take a photograph of someone but that doesn't give me the ethical or moral strength to create unpleasant situations for the subjects.
An example is photographing children in a park. Legal? Yes. Scary for parents who don't know who the hell you are or why you have a monster long lens pointed at their nine year old daughter? Absolutely. You can argue with a protective parent all you want about your first, third or whatever rights but if they feel for a moment that you are a threat to their offspring they'll have their fingers on the touch screen of their iPhone so fast you're head will spin. And justifiably.
Want to shoot a shot of someone's kid? Walk up, present yourself, introduce yourself, tell them what you want to do and why, showcase that winning personality, offer to show them the images, offer to send along a file or print. But, if they demur I think it's more important to honor the social contract than to shoot as an affirmation of "your rights." While you won't be arrested for shooting someone's child in public a mistrusting parent call to the park police will certainly make your day less pleasant.
And really, do you need that kid's picture in your portfolio?
So, here's what happened to create the image above. I was walking around the Spanish Steps in Rome with a Mamiya Six camera and a 150mm lens. (About the equivalent of a 75mm lens on a Canon 5D). There were three models working with a group of photographers and they were taking photos for a class project. I saw the young lady above and walked up to her and asked, in broken TexTalian, if she would mind me taking a photograph. She did not mind. I asked her to pose a certain way and took three frames. She smiled at me. I smiled back and said, "Mille Gracie." I hope that meant "many thanks." And then I turned around and looked for my next interesting photograph.
Would a hidden camera and heaps of subterfuge have worked as well? Probably not. As you can no doubt see from most of my street shots I enlist the willing, overt (not just implicit) cooperation of my subjects. It takes longer but I think the images are more direct and more powerful. Sneaked images seem like a cheat to me. In a war zone? I get it. In the streets and parks of ________, _______ USA?
I don't think so.
There are times when I'm walking and I see something and I shoot it quickly. Maybe it's something humorous that's breaking right now. I shoot it. If I'm noticed (and I'm not trying conceal myself or my intent) I smile and wait for a return smile.
Now, when I say I pose or arrange a found subject that doesn't mean I try to control or impose my will on the subject. There's a difference between gently suggesting a turn into the more interesting light and an attempt to make a street side, impromptu fashion shoot, out of a chance encounter. I also try not to suggest or bend my subject into making poses that are at odds with their own esteem. I've watched photographers ask strangers to assume strange poses or submit to their spatial intrusion as they stick a 21mm lens a foot from someone's face. It's easy to intimidate people. It's inappropriate, in my mind, to use intimidation because you're trying to fill in a preconceived notion about your style or your subject.
A certain amount of honesty always seems to polish an image better than exciting technique, laid on by a heavy dose of iron willed direction......
So here are the guidelines I use in the street. Not laws, guidelines. Based on what I think is our general moral contract with each other. To wit: Don't use photographs to make fun of people who are visibly different than yourself. No photos ridiculing the fat, the ugly, the emotionally overwrought or psychically damaged. Shots of beautiful girls? Yes. Shots of beautiful girls that are obvious nods to their sexuality? Not so much. I use a 35mm or a 50mm or an 85mm lens. Too short and you are prone to cross into their circle and violate their culturally scripted perimeter of comfort. That becomes intimidation. Too long a lens and you don't have any skin in the game. When you are within eight or ten feet and ask permission you've put yourself into the play. You've engaged in a human way. When you shoot from afar you are implicitly trying to "shortcut" the process with all the safety preserved for yourself and all the power robbed from the subject. And they feel the uneven-ness of the the exchange. They know instinctively that they are being taken advantage of. Close means they can ask for clarification of your intention. Far means you have no intention of sharing your intention. That you are hiding behind the space between you.
You see a beautiful girl on the street. You walk up and point to your camera and you say/ask, "You must hear this all the time but you are so cute. Would you mind if I took your photograph?" And, for one reason or another the person says (usually politely), "No thanks." Here's the cutting point. Do you push for more? Do you cajole and beg? Do you think up some phony story to gain "yes?" Or do you honor the person's response and smile and say, "Okay. Thanks anyway." And turn around an leave them alone? If you want everyone to have a fun day you might think about that choice as being a good one.
I had a walk thru downtown with one guy who couldn't leave his 70-200mm zoom at home. Always stepped back and shot from the shadows. Occasionally he would follow my lead and ask permission. If turned down he intimidated and cajoled, presuming that "artists have to have tough skins." "Being true to my vision." etc. It always came off as subtle bulllying. And people have good radar for that.
Now, none of this is to say that photojournalists on stories need to follow my guidelines. They are doing "the news." The people they are photographing are of the public interest. Different rules apply. There are still social constraints to be minded when dealing with innocents but they do have a right to pursue images on public property in a manner that is pretty well proscribed by the journalism courses that most took in colleges (a good reason for the process of education). And of course the above doesn't apply to people in advertising who are paying their models and have contractual agreements and aligned interests. Even there we have many safeties built in.
Bottom line: If it feels sneaky and dirty while you are doing it it probably is. If you feel like you are a tourist in your own town and people are happy to pose.......they probably are. Just don't justify making people uncomfortable because you are too lazy to engage them or too entitled to empathize. It doesn't really make good art.