I am Olivier Long and I am a street photographer.
Having been approached more than once about portrait money or with accusations of invasion of privacy while taking public photos in and around D.C., I decided to research the law. This memo is about what I learned.
Seclusion of Mourners and the U.S. Supreme Court
We should start at the top — with what the Supreme Court says about our right to view people in public and express our views about them.
You probably remember the recent decision in Snyder v. Phelps, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011), for the issue it addressed. The Supreme Court held (8-1) that picketing the funeral service of a U.S. Serviceman is protected activity under the First Amendment, and that these protesters cannot be sued for damages. (The opinion effectively threw out a jury award of millions of dollars.)
The picketers, who were members of Westboro Baptist Church of Topeka, Kansas, had followed police instructions and remained on public property with their signs. The statements on the signs regarded matters of public concern and were not provably false. A few hundred feet away was the soldier’s funeral.
Justice Roberts, in delivering the ruling of the court, stated the following:
“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here— inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
I think the Snyder decision carries a significant message for street photographers. Photographs can be a form of public comment like a protester’s sign. Photographic images often accompany news stories. They can also convey opinion on a subject of general interest and be a form of protected speech. The reason I believe Snyder is so important to street photographers is that it validates their presence on public property just as much as it legitimizes the presence of the Kansas church members — for the purpose of expressing an opinion. In Snyder, the opinion is on placards. With a street photographer, the news item or artistic or political commentary is in the photographs.
Let’s next review the controlling cases in Maryland, Virginia and Washington, D.C.
Street Photography in Maryland:
The most significant court decision in Maryland concerning the right to photograph in public is Furman v. Sheppard, 130 Md.App. 67, 744 A.2d 583 (Md. App., 2000). Here is the way Furman defines “invasion of privacy”:
“The intentional intrusion upon the solitude or seclusion of another or his private affairs or concerns that would be highly offensive to a reasonable person.
Pemberton v. Bethlehem Steel Corp., 66 Md.App. 133, 163, 502 A.2d 1101 (1986), citing Restatement of Torts 2d, § 652B.
[744 A.2d 586]
To determine whether the surveillance constituted an actionable intrusion under Maryland law, we ask whether there has been an intrusion into a private place or the invasion of a private seclusion that the plaintiff has thrown about his person or affairs. There is no liability for observing him in public places since he is not then in seclusion. Id. If surveillance is "conducted in a reasonable and non-obtrusive manner, it is not actionable." Id., citing McLain v. Boise Cascade Corporation, 271 Or. 549, 533 P.2d 343 (1975); Forster v. Manchester, 410 Pa. 192, 189 A.2d 147 (1963); Ellenberg v. Pinkerton's, Inc., 130 Ga.App. 254, 202 S.E.2d 701 (1973).”
Furman v. Sheppard, 130 Md.App. 67, 744 A.2d 583, 585-86 (Md. App., 2000).
This limitation seems clear in theory, but might be controversial in actual practice. Would a reasonable person consider themselves to be “in seclusion” in the men’s locker room at the University of Maryland football stadium? What about the area outside the bathroom stalls? Fortunately, the answer is of no concern to street photographers.
There is another type of wrong that may occur when publishing someone’s name, image or likeness without their consent, called “false light”. This involves portraying a person differently than they really are; in a manner that is offensive, uncomplimentary, or unsavory.
“False light invasion of privacy has been defined as follows:
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of privacy, if (a) the false light in which the other person was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
Bagwell v. Peninsula Regional Medical Center, 106 Md.App. 470, 513-514, 665 A.2d 297 (1995), citing Restatement (2d) Torts § 652E. This tort requires publicity, meaning that "the disclosure of the private facts must be a public disclosure, and not a private one." Hollander v. Lubow, 277 Md. 47, 57, 351 A.2d 421 (1976). Complete defenses exist where (1) the statement is true, or (2) the plaintiff consented to the publication.”
Furman v. Sheppard, 130 Md.App. 67, 744 A.2d 583, 587 (Md. App., 2000).
This is where an unflattering alteration to someone’s appearance in an image might get you into trouble.
A third way to damage someone through unauthorized publication of their photograph in Maryland is called “publicity given to private life”.
“The tort of publicity given to private life has been defined as follows:
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for unreasonable invasion of his privacy, if the matter publicized is of a kind which (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.
Klipa v. Board of Educ. Of Anne Arundel County, 54 Md.App. 644, 654-655, 460 A.2d 601 (1983), citing Restatement (2d) Torts § 652D.
Furman v. Sheppard, 130 Md.App. 67, 744 A.2d 588 (Md. App., 2000).
Examples might include real-time public display of backscatter x-rays of the public entering your corporate headquarters; or holding a camera over the top of someone’s backyard wall to photograph them around their pool.
I find it interesting from a street-photographer’s perspective that Furman involves a photographer trespassing at a private club! The court held that plaintiff’s privacy was not automatically invaded by someone illegitimately on club property, if they were filming the same scene observable from the street, and if the person being filmed should have known they might be photographed as a result of their active participation in some other litigation.
Street Photography in the District of Columbia:
In Washington, D.C., the legal limits on taking pictures of people in public are similar to those in Maryland. Essentially, the D.C. Court of Appeals says that publication of a private matter may constitute an invasion of privacy if the matter being publicized (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public. Restatement (Second) of Torts § 652D.
The leading D.C. case on invasion of privacy with a camera is Vassiliades v. Garfinckel's, Brooks Bros., 492 A.2d 580, 594 (D.C. 1985). This decision deals with a plastic surgery patient suing her surgeon for using her likeness without permission in marketing his services.
It seems obvious to me that if you use someone’s name, image or likeness for commercial gain (not news reporting or serving a legitimate public interest) – and you fail to obtain their advance permission – you are risking legal trouble. But that is what the doctor did here.
Vassiliades stands for the proposition that:
“A plaintiff whose private life is given publicity may recover damages for the harm to her reputation or interest in privacy resulting from the publicity and also for the ‘emotional distress or personal humiliation … if it is of a kind that normally results from such an invasion and it is normal and reasonable in its extent.’ ” (quoting Restatement (Second) of Torts, supra, § 652H cmt. b).
Vassiliades, 492 A.2d 580, 594; cited in Hedgepeth v. Clinic, 22 A.3d 789, 810 (DC, 2011).
In Vassiliades, the court’s own language held that:
The tort of invasion of privacy also requires, however, that the publicity be "highly offensive." RESTATEMENT, supra, § 652D comment c. "[T]he claimant [must have] suffered an unreasonable and serious interference with protected interests." [Citations omitted.] … "The protection afforded to the plaintiff's interest in his privacy must be relative to the customs of the time and place, to the occupation of the plaintiff and to the habits of his neighbors and fellow citizens." RESTATEMENT, supra, § 652D comment c.
Id., 492 A.2d at 588. And the opinion continued,
It is a defense to a claim of invasion of privacy that the matter publicized is of general public interest. Pearson v. Dodd, 133 U.S. App.D.C. 279, 281, 410 F.2d 701, 703, cert. denied, 395 U.S. 947, 89 S.Ct. 2021, 23 L.Ed.2d 465 (1969); RESTATEMENT, supra, § 652D. Moreover, this defense or privilege is not limited to dissemination of news about current events or public affairs, but also protects "information concerning interesting phases of human activity and embraces all issues about which information is needed or appropriate so that that individual may cope with the exigencies of their period."
Id., at 589.
Clear evidence of consent would have been an absolute defense to invasion of privacy, but the doctor did not have a waiver in writing.
Finally, Vassiliades alleged she was portrayed in a “false light” in terms of her hair and makeup before and after surgery. The court of appeals did not agree with her; finding that there was nothing particularly derogatory about the images.
Street Photography in Virginia:
Virginia has codified the principle that if you benefit from someone’s image or likeness, you have to pay for it:
Code § 8.01-40(A) provides that if a person's "name, portrait, or picture" is used for "advertising purposes or for the purposes of trade" without written consent, the person may maintain a suit in equity to prevent the use, and may sue and recover damages for any injuries resulting from such use.
Exceptions include newsworthy and public-interest events, so long as they are not excuses for advertising.
The leading Virginia case on the utilization of another person’s image is WJLA-TV v. Levin, 264 Va. 140, 564 S.E.2d 383 (Va., 2002), again involving a doctor.
The Supreme Court of Virginia notes in footnote 5 of Levin:
“The common law torts of invasion of privacy are (1) unreasonable intrusion upon the plaintiff's seclusion, or solitude, or into his private affairs; (2) public disclosure of true, embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and (4) misappropriation of plaintiff s name or likeness for commercial purposes. William L. Prosser, The Law of Torts § 117 (4th ed.1971). By codifying only the last of these torts, the General Assembly has implicitly excluded the remaining three as actionable torts in Virginia.”
Thus, following the logic of the footnote, it may be permissible in Virginia to utilize a tall tripod or a camera at the end of a pole, or a super telephoto lens — from a public vantage point — to image something in a secluded area. (But I am not suggesting you try it.) And it also appears that in Virginia you can “Photoshop” someone out of their public appearance, or take their picture with a fisheye lens as they head for a dieting seminar, even though doing so might portray them in a false light. You would still need to be careful not to commit libel, however.
My street photography is common sense. My goal is always image quality, never earning money or causing harm. I am pleased that my general approach to photographing people in public in the DC Area appears to comply with the First Amendment and local law.
I would never utilize an anonymous street image for advertising or trade. I would not falsify or distort; only crop, clarify, adjust and sharpen. I would not intentionally cause offense or humiliation to people of ordinary sensibilities.
In public places, I photograph what I consider to be of general interest; and I believe that public interest is borne out by the number of people who look at my photographs on Flickr. My purpose is to document the vagaries of the local community where I live, while fueling my passion for composition and post-processing; and maybe occasionally making a political statement.
 This article presents the viewpoint of its author, and nobody else. It does not constitute legal advice. Each photograph taken in public involves unique facts that need to be carefully evaluated in context by a competent legal professional. If you have an issue regarding a image, you should consult an attorney and obtain an opinion that is specifically tailored to your situation.