People are shutterbugs. We love using our cameras and cell phones to capture the moment. Whether you're at a crowded event or by yourself shooting photographs or movies of some scene that interests you, you can't help but videotape or photograph other people.

You need to be careful. Not only do you need to pay attention to where your shooting, but who you're capturing is important, too. You may face a lawsuit if you plan on selling your pictures or video and the person you captured on film doesn't give you their permission or consent.

Videotaping and Photography Laws

Photographing or videotaping a person without their knowledge or consent may open you up to a lawsuit for invasion of privacy. It's a tort or civil wrong. Generally it means the intentional intrusion into the private life or affairs of another person. If you violate someone's right to privacy and cause injury, that person is entitled to sue you to recover damages.

On top of that, your videotaping or photography may be a criminal offense. It's a good idea to talk to an attorney about the laws in your area that may limit or restrict your ability to videotape or photograph people, places or things.

Public Places are Fair Game, Almost

Generally, it's perfectly legal to videotape or photograph any person and anything while on public property, except:

  • You can't take pictures of areas that are usually considered private such as bedrooms, bathrooms, changing rooms, locker rooms, hotel rooms and so on
  • Certain public places have banned the use of cameras such as mass transit systems, courthouses, capital buildings, secured government buildings, jails or prisons unless you obtain written permission
  • You can't film or photograph if it interferes with police, fire, medical or emergency operations

It's Called Private Property for a Reason

There are also restrictions on videotaping and photographing on private property:

  • If the private property is open to the public, such as retail stores, private stadiums or tourist areas, filming may be allowed unless there are signs posted expressly forbidding videotaping or photography
  • Walking onto private property without permission is trespassing. In some states, so is pointing a camera over a fence   
  • If the private property belongs to someone other than a commercial business, it's best to get the property owner's permission before shooting

Get Your Subject's Consent

The best way to protect yourself from being sued for invasion of privacy is to obtain the subject's permission or consent to be photographed. There are various ways consent is given:

  • Express consent. Getting permission in writing is always the best policy
  • Implied consent. This means that the subjects knew you were taking their picture and indicated consent by their reaction, such as posing or waving at the camera or nodding affirmatively after you requested their permission before you took the shot
  • Oral consent. The person voiced his or her consent to be filmed
  • Consent through misrepresentation. This is when the subject misunderstands the nature of what's being photographed or how the photograph is being used. For example, a model agrees to disrobe and be photographed for a medical textbook when the photograph is actually marketed as a poster

Problems with Oral and Implied Consent

Oral or implied consent are supposed to be just as effective as written consent. However, each have their problems when trying to prove the consent in court. The subject may have forgotten that they gave their consent, or they may even lie, for instance.

Also, the subjects or models may admit that they consented to be photographed. They may change their story, though, and say they didn't consent to the publication of the photograph in a newspaper, magazine, television commercial or news broadcast.

Talk to Parents and Guardians

For consent to be effective, it must be given by someone who's capable of understanding the nature and consequences of videotaping or photography. Get the consent of parents or guardians if you're photographing minors or mentally disabled individuals.

Get a Release for Publishing

The best practice is to have the subject sign a release of any right in the use of the photograph or videotape if you plan on publishing or selling your work. It protects you and the buyer.

For example, a photograph of a window framing a couple in an intimate pose in a bedroom gives the appearance of an invasion of privacy. For that and other obvious reasons, legitimate publishers usually require a release before they'll buy or market the photograph.

Many of us snap pictures or shoot video without even thinking about it. We're more concerned with "getting the shot" than the potential legal problems. Most of the time it's fine, but sometimes it isn't. To be safe, be aware of where you are, who's in your viewer and what your intentions are before you click the shutter or hit the record button.

Questions for Your Attorney

  • What should I do if I notice someone taking pictures of me or my children without asking my permission?
  • Can I tape my child's Christmas play without getting permission?
  • Is it okay to sell pictures I take in a public park to a newspaper?