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I am interested in what rights my subjects (i.e. the people I take pictures of) have to my photographs, and in which cases I need permission to post them online (e.g. on my portfolio website or to a social network).

I realize this is a vast topic, so here's some limitations to this question's scope:

  • I live in Germany. I'm only interested in the legal perspective. For moral reasons, I will always ask for permission if possible before I post a picture online, and remove it if the person depicted in it requests it.
  • The pictures in question are pictures of single individuals or small groups, not pictures of crowds or public spaces where people are only accessories to the shot. None of the people in my photographs are of public interest (i.e. no celebrities, politicians et c., not sure about the correct term).
  • I am talking about my private, non-commissioned work. That is, pictures I take on my own time of friends and family, as well as in public places and/or at public events.

Do I need permission to use photographs like that? Does it matter if I use them non-commercially (e.g. including them in my online portfolio) or commercially (e.g. selling them on Adobe Stock)? Does it depend on whether the subject is identifiable in the picture (i.e. a portrait vs. a landscape shot where you online see someone walking away from the camera)?

Since this is still somewhat vast, here are two specific examples:

  • A few days ago, I took a couple of pictures of a friend, both in her home and outside. In some of those pictures she posed for the camera (implying consent to me taking the pictures?), some others I took while she wasn't aware of it. Does that make a difference? Do I have to ask permission before I post them online in either or both cases? (Again, I am interested in the legal perspective only. For moral reasons, I won't publish any of those pictures unless she explicitly consents to it).
  • I regulary go to anime/gaming conventions and take pictures of the cosplayers (people dressing up as characters from anime/games). Most cosplayers will happily pose for you (again implying consent to you taking and publishing the pictures?). On those occassions, it is oftentimes not possible/practical to ask for permission to post the pictures online right away or request contact information in order to ask later. I have posted pictures like that before with the disclaimer that I would remove them and/or credit the cosplayers depicted in them if they requested it. Again, I am interested in which rights both I as the photographer and the cosplayers as my subjects have to the pictures and whether or not I legally need to obtain permission prior to using them in any way mentioned above.

Please let me know if there are is any more information you need in order to give a meaningful answer. Also I am not sure whether this question belongs here, on the Graphic Design SE website or somewhere else, feel free to migrate it if need be. Thank you!

MoritzLost
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  • Closely related, possibly a dupe: http://photo.stackexchange.com/q/75656/4262 – Caleb Apr 22 '16 at 20:19
  • I read that question, and I'm aware that there is no catch-all rule and that the need to obtain permission is greatly dependent on the circumstances. This is why I made sure to include both the scope of my question as well as specific examples that I would like an answer to. Those aren't made up by the way, they concern actual pictures I took and would like to publish online, so I would still like an answer that covers the specific situations and circumstances I elaborated in the question – MoritzLost Apr 22 '16 at 20:26
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    If you need to be certain you're doing the right thing legally-- for example, if you were selling photos of your friend to a company to be used in advertisements --you need to hire a lawyer (or otherwise get advice from a real legal expert). On Photo.SE all we can help you with is more or less guidelines for avoiding legal trouble. For something like posting photos on Facebook, that's plenty good enough. I've seen people break copyright law with what they post on Facebook, and I've never known someone to get in serious trouble for it. – Era Apr 22 '16 at 21:07
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    +1 good question. I read many different opinions on how to interpret the laws ranging from not even being allowed to take the image without permission to only requiring a permission for commercial publication. I'm afraid that except for answers from experience, you are out of luck on photo.se. I would recommend that you also ask your question over at [law.se]. If you do so and get an answer, feel free to answer your own question here with a link and a short summary of the answers you got there. – null Apr 22 '16 at 21:52

1 Answers1

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First a disclaimer: If you want legal advice then you need to consult a lawyer. I am not one and below if what I have gathered over the years and share to try and be helpful, but it is not guaranteed to be correct.

First the commercial/stock photo situation. For this you will always need a model release to be filled out and signed by the model, or their guardian if under 18.

Stock sites/agencies will insist on this for every person in every photo. So you will need this explicitly for each shot that you upload. This also includes self-portraits!

There is an exception, if the photo can be considered reportage (for editorial use only). But then the use of it is different.

An example of what one site requires is here: http://www.istockphoto.com/article_view.php?ID=648

In general, it is the publishing of the photo and not the taking that is important. So you can take any photos you want and they can't stop you. However, if they do complain to the police then you will probably still be asked to delete the photos, so this is perhaps not so clear. And if taking photos on private property then you should first get permission.

For non-stock photos then you need to consider the domain that you are publishing in. If they are published in a private domain, then you don't normally need any permission. So for example you could publish on your own web site but only provide access to specific limited people (making people register does not count!).

Otherwise you are publishing them publicly, and here you need to be more careful.

If the shot is of a single person then you will need their permission. If it is of more than 1 person, should as a group or in a crowd scene then it is not so bad. But the exact legal position here I am not sure about. Note that if you zoom in on somebody in a crowd that this is then an individual shot, not a crowd scene.

Also, to take photos a specific events you will normally need permission (sports events, concerts etc.)

People in the public eye are different (Personen des Zeitgeschehens), and you can photograph them without permission but only if the photos are not embarrassing. But be careful, as any photos of minors associated with these people are not allowed.

All of this only applies if the person is recognisable in the picture. So if they have there back to you for example then it will probably be OK.

Some information in English is here: http://guidedmunich.com/german-privacy-laws/

In general, you should always ask and get permission. And be prepared to take photos down if asked (and provide an easy way to allow this).

jason.kaisersmith
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