Do I need a release form? Will I be sued for using this image? Is this illegal? It’s the thought bubble with a bold question mark that follows every photo of a stranger. Hear from Jesse Marlow and Jonathan Higbee, two of the best in stranger street portraits, on how they approach consent from their subjects.
A city’s CBD is a colour palette of characters. When you work in a CBD, you observe these characters at a distance, you get to know these characters. I’d been walking past Chris for months before I finally built the courage to say g’day. Camera in bag, I was ready.
Chris was kind. “Of course, you can take my photo,” he said. We walked and talked until I was late for work. I was confident I’d made a pretty good portrait but the film would make me wait. Chris and I said goodbye and carried on with our days. I sat down at the desk digesting the interaction and then thought, should I have gotten Chris to sign a release form?
I raised the question at dinner with a bunch of photographers: Do you need written permission? “Yes, always get a consent form signed,” one person said. “No, it’s fine. You don’t need one,” said another. “Ah, I don’t know. I guess it depends on the situation.”
The answer? Let’s consult two photographers well-versed in the art of stranger street portraits to find out.
Jesse Marlow is a Melbourne-based photographer known for his portrayals of the urban experience in candid and uncanny ways. His commitment to hitting the pavement earned him International Street Photographer of the Year in 2011 and the coveted Bowness Photography Prize in 2012.
Marlow’s built a career photographing his co-citizens moving through their landscapes with particular focus drawn to the blue-collar workforce. In fact, London publisher Bump Books has very recently published Marlow’s ‘Business As Usual’ — a zine presenting Marlow’s collection of photos of ‘workers’.
Aaron: What’s your approach to photographing strangers on the street?
Jesse: When I’m shooting my personal street work, I’m always respectful of people and their situation and there are definitely certain things I won’t shoot. In a lot of my more recent work the people I shoot are often a smaller part of the image or their faces may not be visible. That’s not to say I don’t shoot photos with faces, it’s just that my style has evolved over the years and sometimes there’s a more interesting or ambiguous photo to be taken by not including a face.
Aaron: Have there been any incidents where subjects have called you out for photographing them?
Jesse: One of the recurring themes in my work has been ‘workers’ and on a number of occasions I’ve been mistaken for a building inspector or insurance claims officer which has been quite amusing.
The photo of the workers (Ten Men, 2010) carrying the large sheet of glass through the city street is a scene I first saw from a few hundred metres away. As I ran toward it fearing I’d missed the moment, I quickly looked back to their truck to see how many more panes of glass were left. Luckily there were another three so I knew I had the chance to shoot them again. I found my position and as they carried the second pane of glass one of the guys spotted me shooting. They didn’t mind or say anything and certainly weren’t going to risk dropping a very expensive shop front window to pursue me.
“I’ve found it easier to pay someone a compliment or smile if they’ve asked why I just photographed them.”
Aaron: What’s your consent protocol when photographing on the street?
Jesse: The best advice I was ever given when starting out in street photography was to always shoot first and beg for forgiveness later and that’s how I’ve always worked. I’ve found it easier to pay someone a compliment or smile if they’ve asked why I just photographed them, than run the risk of missing the moment by asking for permission.
Jonathan Higbee is a New York-based street photographer with a long CV of accolades including winning the World Street Photography Grand Prize in 2015, a LensCulture Street Photography Award in 2016 and more recently, was a 2018 finalist in the Hasselblad Masters.
Chances are you’ve seen Higbee’s photographs somewhere in the digital ether, particularly those photographs now gracing the pages of his debut monograph ‘Coincidences’ published by Anthology Editions in 2019 — Higbee’s self-professed love letter to New York City and the result of several painstaking years finding needles in its haystack.
Aaron: Jonathan, what’s your approach (if you have one) to obtaining permission to photograph people?
Jonathan: As far as permission goes, when I first began shooting the streets I would often ask strangers if I could take their photograph. I was experimenting with street portraits at the time and it was the right thing to do for the style. I got lots of “no” but enough “yes” replies to continue pursuing the form.
My tastes quickly changed and I can’t recall the last time I asked a stranger for permission, but I have nothing against doing so, and I have nothing against another street photographer making work that involves permission and complicity from a stranger. I know that’s considered sacrilege by the dogma, but all the most interesting work is so screw it.
“Sometimes the cultural attitude toward shooting street is of more immediate importance than some vague legal guidelines.”
Aaron: What’s your understanding of the legal aspect of photographing people in public? Do you take this into consideration?
Jonathan: So, it’s important that I emphasise a couple of things before I wade into these waters. First, I’m no lawyer (sorry, Dad) so any of my anecdotal escapades or tips or perspectives definitely don’t count as legal advice. Secondly, it’s crazy how different laws can be in one jurisdiction from the next! What can be true and legal here in the U.S. can be the complete opposite across the pond, for example.
Consideration of what is allowed under the law relating to street photography and the legal ramifications are unfortunately aspects I have to consider often. Especially when traveling internationally. Before each trip outside the U.S., I review as much information as I can find as well as reach out to followers on all my social media channels for a sense of what the line for street photography is in my destination country.
Making street photography in Germany ahead of a recent trip to Hamburg and Berlin, for instance, appeared at first to be practically impossible according to my research and their complex (and often contradictory) laws around photographing in public. But once on the ground, after jet lag had vanished and I began feeling comfortable and meeting friends, I was able to fine tune my understanding of what is okay and what is not. Sometimes, I’ve learned, the cultural attitude toward shooting street is of more immediate importance than some vague legal guidelines.
Aaron: Have you experienced any unusual circumstances while photographing strangers or photographing in public?
Jonathan: Somewhere in the back of my brain I consider the law when I’m out working. But, just in case things get hairy, I’m armed with paperwork that clearly states U.S. legal precedent allowing for photographing practically anything that can be observed from a public space.
There’s only been one occasion when I’ve had to pull out this invaluable wallet-sized document, created by the ACLU for photojournalists. This was thanks to a hapless group of security guards who hassled me. They obliged by reading it, but remained unconvinced, so they finally called their manager. The manager, annoyed, told them that I was right (well, the document was) and to stop wasting my time. I urge other street photographers to find this indispensable little document online, print it out, and keep it in their gear bags!
Worst experience, however, involved a seemingly drunk man working on his car who became upset when he noticed me photographing. The second he raised his voice it seemed like six or seven other big dudes emerged from nearby shadows to surround me. After chewing me out, he demanded I delete any photos I made of the scene from my camera right there and show him as I did it. I’ve come to enjoy this whole being alive thing, so I followed his wishes and worked hard to diffuse the situation. Hopefully nothing ever tops that experience.
“Kindness goes a long way, and, just as importantly, can invite a greater appreciation of the medium!”
Aaron: What advice would you have for young photographers wanting to make photographs of other people?
Jonathan: In the world of street photography, it’s impossible to overstate the importance of respect. You should always remember how important the role strangers play on the street and in the art-making process. Their contribution to the street photograph is invaluable and they deserve respect accordingly. I’m not suggesting groveling at their feet or anything, but avoiding ruining a stranger’s day is a good place to start. Maybe even say thank you, introduce yourself, or heck, offer to email them a photo or two if they notice that you’ve taken their picture. Kindness goes a long way, and, just as importantly, can invite a greater appreciation of the medium!
Do you need written consent?
Two weeks after I took that portrait of Chris, that thought bubble with the bold question mark about whether I needed his permission still lingered. So I’d look for Chris on my way to work each morning. He was a vagrant, though. It would take two more weeks to finally cross paths with him again and this time, I had a release form for him to sign.
Chris put pen to paper. I was in the legal clear. But Chris seemed shaken by the formality — not the jovial drifter I had photographed a month earlier.
‘It depends on the situation’ is right. The situation I’ve described was very early on in my practice of approaching and photographing strangers and I’ve since relinquished this additional paperwork as it continued to embed a layer of doubt or fear in subjects.
When it comes to getting written consent in street or documentary photography, my advice is to trust your instincts and follow a protocol that suits you and your style of photography best.
I currently operate under the verbal permission model because my modus operandi involves closely photographing people on a manual focus camera with slow film stock. In other words, it would be technically impossible to make portraits in this way without the consent (and patience) of the subject.
More importantly, I rely heavily on my ability to build rapport with a subject. And at the end of the impromptu shoot, I know them and they know me. I’m left entirely confident I’ve obtained enough permission.
I do hand out a business card with my number, website and email address. This helps to distance the thought bubble and bold question mark by adding a layer of legitimacy to the experience. Suddenly, I’m not a creep lurking with a camera, but a photographer intent on taking good portraits.
And finally, as Higbee points out, having some level of knowledge around your rights as a photographer and the law on taking photos without permission in the country you’re in is highly important to make sure you’re in the clear. In Australia for example, a footpath in front of a house is considered public property while the lawn is considered private property. So research your rights, trust your instincts, and develop a protocol that allows you to produce photos you’re proud of.