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Who’s using you? Photography, your face and your rights

Do you ever think of your face as something you own? Probably not. But, through photography, our faces can find themselves in all sorts of places. Even if you’re a model and it’s how you make your living, it can be really disconcerting to spot yourself somewhere you didn’t expect. So how might our faces find themselves in places we didn’t want them to be? And can we do something about it if we’re not happy?

When your face is your fortune

If you’re in front of the camera for a living, then it’s likely that you’re pretty well aware of how to keep control of your image, but there are plenty of aspiring models who may not know their rights in this respect:

  • It almost goes without saying that if you’re having your photo taken then you should know who is taking it, what they want to do with it and whether you trust them.
  • It is sensible to have a contract that you’re comfortable with and specifies clearly how the images may be used. If you’re not offered a contract, you might want to think about walking away – even if money is offered.
  • Even if it is a commercial endeavour, and you are being paid for your time and the right to use your image, if the shoot feels uncomfortable or you’re not happy with what you’re being asked to do, then it might be time to question whether you want to be involved.
  • Remember: once the images are in digital form then they can potentially be available anywhere online, without limitation.

If the photographer is being paid to create a body of work for a specific purpose or brand, then it’s usually pretty clear upfront how your face will be presented, and you can either agree to take the job (or not) on that basis. But what if the photographer simply wants to sell it on the open market? This is where it’s sensible to have a contract or model release, which you read and absolutely understand before taking part. It’s also not unusual for models to make certain stipulations around the use of the images.

For example, you may want to be named in the photos. Or limit the length of time the photo can be used for. Or you could even stipulate that you do not want your image used in association in certain contexts. For example, if you are a passionate advocate for animal rights, you may not want your image advertising clothing that uses fur. These need careful thought, however, as limiting the use also limits the market for the photographs – and this may also affect how much work you are offered and how much you are paid. On the other side, if the image has unlimited use (both above and below the line), then the photographer will potentially make long-term royalties from it, so you may also be able to negotiate further in terms of fees.

Things to remember:

  • Working through a reputable agency can be safer, as they should ensure that the paperwork is appropriate, and you are accordingly paid for your image and time.
  • Always read what you sign. If you are uncomfortable with any element of the agreement, or if you wish to have any aspect recognised, it’s ok to ask for amendments.
  • Ultimately, if you sign a consent for your image to be freely used without limitation, then the image may be used in association with every cause or product imaginable – like them or not.

A man wearing a blue suits and white shirt is on a skateboard, checking his phone. Behind him are glass fronted offices
When you’re out and about in public spaces (streets, public squares, public transport and more), then you may be fair game for photographers.

But what if you’re not a model?

If you don’t have an agreement or contract as a model, then there can be plenty of misconceptions around who can photograph you, where and for what purpose. The law in this area is complex. It’s an area that can make the average human shudder in fear of the weight of rules and laws, including the laws of breach of confidence, breach of privacy (if there is one!), the European Convention of Human Rights, and GDPR.

You don’t always have a right to prevent your photo being taken…

When you’re out and about in public spaces (streets, public squares, public transport and more), then you may be fair game for photographers. It may not be nice, polite or even ethical to take photos of strangers without asking first, but it is not necessarily against the law or a breach of your privacy.

…but there are plenty of times and places when you can expect privacy

There are times, though, where you can have a reasonable expectation of privacy. If your photo is taken anywhere that could be argued is not public, then you may have cause for complaint. This could be in an office, a hotel corridor (e.g., if only accessed by security card), your home, a place where a conscious effort has been made to make it private, or on any kind of private property, such as a church. There are also some scenarios that may be deemed private – for example, if your photograph is taken as you leave a hospital, care home, clinic, rehabilitation setting, prison or even a food bank.

These rules apply to adults and children alike

Age is not necessarily a factor and, as above, what rights a child may have can depend on the circumstances. You may not necessarily have cause for complaint if you or your children are photographed in a public place, but the location, events, country and circumstances around the taking of the photo are all factors in the bigger picture.

You may have a reasonable expectation of privacy. If your photo is taken anywhere that could be argued is not public, then you may have cause for complaint.

Shocking behaviour and social sharing

Of course, the way a photographer conducts themself is also really important here. Even if you are in a public space, and they can quite legitimately photograph you, you have every right to expect them to not to be obstructive, inappropriate, aggressive or intimidating. This may constitute harassment and can be dealt with by the authorities. Equally, if you discover that someone has or is trying to photograph you in a sexual way without your consent, this may be a crime.

The terms and conditions of Facebook state that you may not use their products to “do or share anything that infringes or breaches someone else’s rights”. However, there is also another aspect to consider. If your image is used and captioned in a way that is misleading, discriminatory or libellous, then you may have another legal framework by which to demand action. Requesting the removal of images from social platforms is possible on both Facebook and Instagram, with Instagram having a specific ‘by image’ report button that includes breaches of intellectual property, hate speech, harassment and more.

So, the next time you have a lens pointed at you, simply think of the three Ps – Payment, Permission and Privacy – and ask yourself, “am I being paid for this?  Does the photographer have my permission? Am I in a private place or context?” and you might not find your face where you least expect it.

If you have any worries about a particular use of your image, it’s always a good idea to seek further independent legal advice, specific to your concerns, circumstances and country.

Written by Mark Paton, European Intellectual Property Counsel for Canon Europe

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