22 mins in Kate introduces a question re: street/public photography and the way to respond to a refusal from a member of the public to sign a model release.

The response from another member of the team is given as being from a “common sense” rather than “legal” point of view. It’s certainly not the legal position as I understand it, but I’m confused as to how it’s common sense.

“really, you should be deleting the image”

Why?

As far as I am aware the refusal to consent to a model release means only that the image can not be published commercially. In other words, the photographer is in the same position they would have been in if they’d simply never bothered to ask for a model release. The photographer still owns the image though and is under no obligation to delete an image simply because they can’t use it for commercial purposes, OR because the subject of the photo has refused a model release.

It doesn’t stop the photographer publishing and using the image for non-commercial or artistic purposes, does it? e.g. I could upload a photo I’ve taken in the street to Flickr or my own website without a model release.

the response went on:

“it gives them the privacy that they have clearly requested, and you’ve kind of put yourself in the position by asking for the release, of taking away any doubt as to whether or not they were happy about the photo being taken. You can’t say there was any ambiguity about it. They’ve said “I don’t want you to have taken my photo”, so really you need to delete it in that situation. Certainly don’t publish it”.

This seems to me, from my layman’s point of view, to be confusing issues of privacy and of the legal issues surrounding model releases.

A model release isn’t a statement of happiness about the taking of a photo, but an agreement assigning rights over the image for commercial use. Is it not?

On the issue of privacy: If the subject of the photo was out in public then they can not reasonably expect privacy from being seen by people or their camera lenses. They have no right to say that somebody can not take a photo of them in public, as long as the taking of such images doesn’t constitute harrasment (which a single candid photograph can not be) or blocking a public right of way, trespass, or any other crime. In fact as I understand it, the taking of such photographs can be done even if the subject is in a private place (but visible from a public place).

I understand that the point being made may have been from the point of view of keeping everyone “happy”, and of discouraging aggressive paparazzi style behaviour, but if I’ve just taken the best photo of my life I’m not going to delete it simply because I was refused a model release. I just (probably) won’t be able to sell it.

This is a really important distinction which I feel it’s necessary to clarify, as it suggests an obligation on photographers which I strongly believe doesn’t exist. Others could confuse this advice with a plethora of other issues such as the recent and much criticised law re: photographing police, and generally the rights of other people to control what you “should” or should not delete.

Each individual is free to make their own choices as to how they might respond in that situation. There’s only one good reason for deleting an image and that’s because YOU want to. What leads you to WANT to delete that image will be based on a variety of circumstances and moral standpoints that can’t always be distilled into a simple catch-all policy.