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You might not think about it, but as a photographer, you possess a certain power over the people you photograph. In her well-known book On Photography, Susan Sontag wrote:
”To take a photograph is to participate in another person’s mortality, vulnerability, mutability.”
Photographing someone exposes them to scrutiny, both by others and by themselves. The photographer captures a representation of the person which may be very different from how they see themselves; it’s a representation made by someone else. This is not a bad thing or a good thing, but it is the basis for this discussion about consent in photography.
People have a basic right to integrity, to make their own decisions about their bodies. Consent is someone’s agreement for another person to do something that would violate their integrity if it were done without their approval. For instance, we can consent to take part in a medical examination, joining a dance, or performing on stage, all of which would be wrong for someone to force us to do.
So how is this relevant to you? When do you need to ask for consent in photography, and how is it done?
When it comes to photography, the absence of consent usually isn’t about a direct physical violation. It’s (fortunately) rare for someone to be dragged into a studio against their will or forced to pose. The legal and ethical issues have more to do with the ”aggression” of the act itself, the right to privacy, and also to some extent the control the person may want to have over how they’re represented.
Even if you may not have considered it in those terms, you’ve probably encountered the question of consent if you’ve ever taken photos of other people, especially if you do street photography. For example, maybe you’ve considered whether to photograph people kissing or taken a photo and received an annoyed or angry expression in return.
When considering consent, you need to keep in mind both the making of the photograph and its publication.
For instance, imagine that you’ve been hired to photograph a wedding reception. The consent in these situations is often implied, meaning that even if you’re an outsider in a private space at a private occasion, you can assume that photographing the guests is okay unless they specifically ask you not to. However, this implied consent does not extend to publication on your website or anywhere else, so you’ll have to ask for explicit consent from photographed persons before publishing those photos.
Laws obviously differ from country to country, so you should familiarize yourself with the laws concerning photography in your country or where you travel. For many places, you can find handy summaries of your legal rights as a photographer.
In general, it’s legal to take and publish photographs in and from a public space without asking, whereas taking photographs in a private space requires consent. Selling a photograph usually requires consent from the persons in the picture. If you’re unsure or traveling to a foreign country, it’s always worth looking up the rules.
Apart from the legal aspect, there is also an ethical one. This one is up to you and your values. Do you feel it’s okay to take a picture of a child playing on a beach or publish a series of portraits of people leaving a bar on your website, without asking first?
We all take part in creating the atmosphere and shaping the attitudes of the society we live in or the communities we visit. Thinking about consent makes it easier to decide which photographs are worth making and which ones are not.
In the end, there’s a spectrum of situations in which you can ask for consent. The range goes from just asking when you’re legally required to do so, to asking every single time you take a photo with a recognizable person in the frame. Don’t expect that doing unto others what you want them to do to you will always work in these situations. People’s attitudes toward being photographed differ a lot between individuals.
Interpreting the law in its least strict sense means you may never need to ask for consent as long as you avoid certain situations, whereas asking every single time will help you avoid unpleasant confrontations. Consent may seem tricky, but in the end, it’s not. All it requires is awareness of the law, knowing your own limits, and respecting the people around you.
So you’ve decided that you are required to or want to ask for consent from someone you’d like to photograph. What does that actually mean? How do you get a person’s consent to photograph them and maybe publish their picture somewhere?
To get written permission to photograph someone and use their photograph, you can use consent forms or a model release.
There aren’t any correct or incorrect forms; you can make your own and include whatever you want in it. However, the form should at least contain the photographed person’s name and what they’re consenting to (being photographed and the photographs being published in a certain place or a specific context).
The purpose and date are good to add, but it’s also good to keep forms simple so there won’t be any question as to whether the person who signs the form understood it or not.
Implied consent is when you can assume that the subject is okay with being photographed without explicit written or oral permission. This requires that the person understands that they are being photographed and that they react in a way that implies that they’re okay with it.
As a paid event photographer, you can often assume that the guests know that they may be photographed and that they’ll approach you if they don’t want to be photographed. You can also put up a clear sign at the venue, identifying you as the photographer and explaining that guests can ask to be avoided in the photos if they wish.
In my experience, it’s very rare that people aren’t okay with being photographed at weddings or other events.
There are many consent-related issues to consider in street photography. Tips on how to avoid most issues are presented in this article on how to take an anonymous approach to street photography.
And if you’re unsure, you can always just ask!
This article is a very general overview of what consent in photography entails, with the intent to inspire you to think about the subject. I have no legal training, so please only use this article as a basis for discussion, and please do add your own ideas to it!
Do you think about consent when you’re making photographs? Which of the photos in this article would you have made sure to get consent for, and which do you think don’t call for consent? Have you ever wished that a photographer had asked before taking a picture of you? I’d love to hear your thoughts on this, please add your comments below.
In the end, maybe we can participate not only in the photographed person’s mortality and vulnerability, but also in their pleasant memories, self-confidence, and all the positive sides of mutability.
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