Who owns it?

Several years ago, in a photographic magazine I subscribed to at the time, I read an article on something the author referred to as “the territorial imperative”. To define this, we are presented with the following situation: You, a photographer, are out in a rundown part of town when you spot a homeless person doing something you find interesting, so you take a couple of frames. When you process the images you find they are even better than you’d hoped and decide to publish them. This is where the “territorial imperative” comes into play.

Under Canadian law, the photographer owns the copyright to the image and can therefore, at least theoretically, do whatever they wish with the image. But, does the subject, in the given case a homeless person whose name you didn’t bother to get, have any say over where, or even if, the photo is used? Granted that if you are on a street or in a public place you should have a reasonable expectation that at least some of your privacy will be lost, does that mean you also waive all control over any images taken of you?

There are many reasons people end up on the streets. I won’t list any, but I’m certain you can think of several on your own. The person you photographed has their own story of how they became down and out. Perhaps publishing the image, besides being an invasion of their privacy, will cause them and/or their family great embarrassment and pain. And yes, the converse is also true, that the publication of this photo may lead family members or friends to this person and get them off the streets.

As a photographer, I’ve done many photoshoots. In each case, if I want to use one or two of the photos for my website, even though I own the copyright, I always ask for permission from the subject to use their image. Under the law, it isn’t necessary, but it is simple courtesy. I don’t like candids, from either side of the camera, for they are rarely flattering and can think of only two occasions when I have taken candids and, while they are good, I won’t put them on my site because I can’t get permission from the subject.

The only exception to this is if I am photographing scenery. Most scenic places are well-known and therefore crawling with tourists and other people taking pictures. So unless I need a person in a scenic photo for scale, I try to avoid having people in them, or as I’ve explained it in the past “people make nature look messy”.

I hope this has given you something to think about – even though you can legally publish that photo, is it going to help, or hinder, the subject?

Enjoy the rest of your week, try to stay warm and remember to hug an artist – we need love too.


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