Quick summary In this guide, we will take a thorough look at the concept of consent and how it relates to us as photographers in the professional sense. We will not just clarify what the term ‘consent’ communicates, but also how it is employed and what you need to watch out for to avoid legal and ethical dilemmas. From which types of consent benefit which type of work to what the advantages of a written consent form are, we are going to cover all the basics you need to feel more confident in how you approach issues of privacy, IP, and consent as a working photographer.
Jonathan is a writer and photographer currently based in Poland. He has been traveling the world, taking pictures, and writing about his experiences for over five years. His favorite subjects include landscapes and street scenes.
As photographers, most of us handle sensitive information practically every time we trip the shutter. From the streets we photograph (did we shoot on private property?) to the people we feature in our images, whether willing subjects or bystanders caught unawares, taking photographs often involves a certain crossing of boundaries.
How do you make sure that your client and your subject stay safe? How do you mitigate potential risks, including loss of faith on the side of clients and even legal action in some cases? The answer is simple enough to put into a word: consent. While straightforward enough to spell out, consent in photography is often anything but child’s play in practice. Navigating consent includes the ability to make your own decisions about publication and image production with all parties in mind. It is a skill that deserves to be honed just like any other basic photography skill. But fret not – an introduction to how consent factors into your photographs need not be highly complicated. In today’s article, I will try to give you a general overview of principles of consent relevant to photographers. We will go over all the relevant types and contexts of consent that you need to know about.
You will find all the basic info you need in this guide. That’s whether your work involves you shooting in a public space or at private events and whether you publish on your own website or traditionally via presses or journals.
Without further ado, let’s take a look at everything you need to know about consent in photography!
First, let’s make sure we are all on the same page. Why is consent so paramount for us as photographers? One simple answer – perhaps the simplest – is that images inherently contain information. Some of that information, depending on the nature of the photos and their context, may be sensitive to some people. Especially when faces, names, and private spaces are caught on camera, it is easy to imagine how photographs can reveal information that the subject or subjects may not want published. As photographers, we do not get any kind of unalienable right to take photos in any way we please. In today’s age of fake news, you are likely all too familiar with the numerous laws worldwide restricting the production and spread of misleading photographs that try to distort real-life events through manipulative composition and framing.
Similarly, laws exist which safeguard the natural rights of the person depicted in a photograph. That person has the inherent right to give or deny the photographer permission to share that image with others. This holds true whether they were aware of being photographed or not.
In an everyday context, consent is the right of every human being to make informed decisions about their own body. This goes from interpersonal contact, physical and in other ways, to issues such as identity theft. Consent ensures that nobody involved in a mutual exchange experiences coercion. Actors, models, and spokespeople are examples of those professions that require constant and crystal-clear consent from all parties. Meanwhile, if you’ve ever been in the patient’s chair of a doctor’s office or had your picture taken for commercial or identification purposes, you’re likely familiar yourself with the style and format of a consent form. Now, the question becomes, how does this relate to us as photographers specifically? While photography does not involve any direct physical contact between the photographer and subject most of the time, that does not mean that the issue of consent is completely absent. In fact, the opposite is closer to the truth! Every exposure that features the likeness of a stranger should base itself on consent. This holds true exactly in the same way as a medical examination requires the patient to consent to give oral permission for the procedure that they will undergo.
Forms of consent do change depending on the kind of photographer you see yourself as. Street photographers grapple particularly hard with the concept of consent, for instance. Many working in this genre revere the ‘candid’ nature of totally unstaged, heat-of-the-moment shots. Asking a subject whether they feel comfortable being exposed in a photo may actually compromise the shot if the goal is to display someone caught unawares (and doubly so if that person happens to be a bad actor). On the other hand, only asking for explicit consent after you already took the shot may come as rude, in some cases as outright criminal. Therefore, it is crucial to know your way around consent according to your niche and specialization and to never toy with the trust of your subjects. However, candid street photographers are not the only ones who have to seriously grapple with the issue of consent. Studio portraitists, as different as the nature of their business may seem, also have to pay due attention to ethical issues, including consent. This is because everyone, whether they are a stranger on the street or a professional model whom you have an established working relationship with, deserves to know how you as a photographer, intend to use their likeness in your images. Getting their explicit permission and laying out clear principles of agreed-upon consent is, in fact, one of the hallmarks of a trustworthy pro photographer.
Not all consent is created equal. Oftentimes, implied consent is all that many photographers really engage in. That is to say, they never explicitly prompt their subjects for consent but rather infer from subtle signals whether the person photographed is consenting to being present in their images. This does not have to be a bad thing. In many instances, such as in candid photography, implied consent can mean the difference between a winning frame and a missed opportunity. However, this is not to say that implied consent is all you need, no matter what kind of photos you shoot. Oftentimes, it can be irresponsible, even dangerous, to assume consent. Doing so, you may risk violating the trust and privacy of your clients or subjects. You may even run the risk of legal consequences as a result.
This is why a consent form can make an essential difference to you and your photography business. Consent forms do a few things that help clarify relations between you and your client.
First, they make any and all need for consent explicit. A good consent form lays out everything that is important to know for the client or subject. This includes an honest overview of everything that goes into creating the photographs you are planning to take, as well as a description of their content and future use. Specifics of how you are planning to publish and in what channels the person’s likeness will be available should also be clear and unambiguous. In addition to describing all relevant pieces of data surrounding the shoot, a consent form also does something else. Namely, it invites the person whose consent you are requesting to indicate their agreement in writing. This aspect of written permission is hugely important, and not just for legal reasons. It also serves to build trust with your clients!
Many photographers use the term ‘informed consent’ as a shorthand for the use of consent forms. However, the truth is a bit more complex than that. The label ‘informed’ does not refer to strictly implicit or explicit consent alone. Rather, it describes a state whereby both parties are fully aware of their respective rights, liabilities, and responsibilities before entering into any agreement on consent or future participation in a business context. Think about it: what good is even the most well-written form if your client has never worked with a commercial photographer before? They may not have a sound idea of the kinds of issues that go into consent. In fact, they may not initially even view it as an important matter at all! In these kinds of cases, it is crucial to educate the persons you are working with. The goal here is to be able to rely on their consent when you do request it. This is doubly true in the case of taking photos of children. Mind that not just the informed consent of the child themselves but also their parent or guardian is absolutely essential. Consent forms definitely have their place, and there is no doubt about their efficacy. However, you should also strive to make sure that your subjects are fully aware of all steps of the consent process before asking them to sign any binding document. With an informed state of mind, any person’s consent automatically becomes more meaningful, legally easier to enforce, and ethically more sound and secure!
Consent in photography does not stop at your subjects. You, too, have the right and responsibility to declare your own consent whenever the need may arise. Of course, this includes the potential situation of being caught in the viewfinder of a fellow street photographer – something that has happened to me on more than one occasion. But the people you photograph are not the only holders of consent rights that are relevant here. Your photos are also a matter of consent all by themselves! This is because your images constitute intellectual property, which you have certain ownership rights over as a photographer.
IP and privacy laws vary globally, so be sure to look up the regulations relevant to your own corner of the world. With that said, you should know that the issue of copyright can have a huge effect on what, how, and where you may publish as a photographer. Consider the Eiffel Tower as in the photo above. A world-famous landmark, pictured millions of times a year on everything from disposable cameras to camera phones to professional videography setups used by film studios, it’s an iconic sight. Would you ever even consider that there might be copyright or IP issues with photographing the tower? Turns out, there are! Under French law, a piece of architecture is the intellectual property of its architect, just as with paintings, photographs, and books and their respective authors. This means that the Eiffel Tower is the registered IP of Gustave Eiffel, the engineer who built it. Of course, Monsieur Eiffel passed away over a century ago, so by now, the likeness of his tower has ended up in the public domain. Hence, shots like the one you see above. However, the same does not apply to the lighting that covers the faces of the tower every night, visible from across the shore of the Seine. The man who designed and implemented that system, Pierre Bierdeau, retains copyright over it in France. Because the country enforces its IP laws very strictly, foreign violators often receive fines and court orders to remove their images. And that is why you almost never see any shots of the Eiffel Tower at nighttime!
To release your pictures to the world, you should do so through consent. This includes everything from a social media post to a full feature on your own (or someone else’s) photography website. We’ve all heard stories of photographers having their images being re-used by third parties without their permission, in many cases even without their knowledge! Thankfully, with due intervention, many such cases can be resolved, often through litigation. This is but one example of a situation where the consent of the photographer is crucial. If you give consent to others to publish or edit your work, there is generally very little you can do about the consequences. But if third parties have access to your work and share, post, or use it against your wishes and without consent, you have every right to protest against it and exercise your duties as a photographer.
Practicing photography publicly, let alone commercially, very much intersects with the running of a business in general. And just like any other business, photographers, too, need to stay up-to-date on ethical practices and offer their services in such a way that minimizes the chance of making their clients uncomfortable. To photograph is to expose – and hence, not everyone who is photographed necessarily wants to be. It is up to us to recognize and respect that and to give our subjects every means possible to give unanimous permission to our use of their likenesses. This does not just build trust but helps to foster a more meaningful client-photographer relationship. It is also a matter of courtesy and ethical behavior that distinguishes mindful and respected photographers from the rest.
