5 April 2015

Help! Some stranger just clicked a picture of me.

Authored by: Astha Singh

If someone takes out a camera/phone and clicks a picture of you, without your consent, can you make sure that he/she has deleted it or determine how they use it? This may come as a surprise, but you have no control over what they do with that photo in most situations. This is true in almost all of Europe, Asia and the Americas. Thankfully, it has some limitations.

In India, one does not require the consent of a person before clicking a picture of that person in a public space. Publishing the picture of that person in a public space also does not require consent, but there are some exceptions to it. You cannot share any picture(s) of someone which might harm the reputation of that person. The commercial use of the picture of a person requires the consent of that person. For the most part, you are free to take pictures of other people in public areas for private use under Article 19 of the Constitution of India (hereafter referred to as the Constitution). However, publishing a photo in a manner that might be "embarrassing, mentally traumatic" or causing "a sense of insecurity about [depicted persons] activities" is illegal under Article 21 of the Constitution.

In America, the right to take pictures and video in public spaces is a part of right to free speech. The logic is that, if you can legally observe something in a public space, it is legal to capture the same. Photography in public spaces is subject to several exceptions. Firstly, taking pictures of someone or something using a telephoto lens, parabolic microphone, or hidden camera to capture private property, when you are standing on public property, is illegal.

Another exception is, naturally, public spaces where photography is expressly prohibited. Photographing on any clearly marked private property is considered trespassing and is not allowed. An example of such a place would be embassies, government offices, court houses, military bases and dance clubs often post signs forbidding photography, and you are obligated to follow this. In India, you are forbidden from clicking pictures in the Goa airport, but if you want to click a selfie with your friend at the T3 in New Delhi, it is perfectly fine.

Another interesting exception to legal photography in public places is when it infringes on rights that are a little more important, like privacy. A sulabh shauchalaya (public toilet) is a public place. A person using a public toilet has a right to privacy in the bathroom, and clicking pictures of someone in a toilet is not done. On a private property, one has the right to privacy. If someone tries to peep in from the window of your hour to capture you, it is illegal. So, if you are walking on a road and you can see from the window, while someone is showering, you can't capture that, even though you're on public property. The same goes for America.

The moment you take a photograph and the image is transferred to your card or captured on film, you are the legal owner. Your image is covered by U.S. Copyright. You don't need to do anything else to establish ownership. Like anything else you own, no one can stop you and take your photos or demand that you delete them. It is your property. However, in India, a police-wala can force you to delete a picture. 

You can post your images on your blog or website without permission from the subjects of your photo. As the legal owner of the photo, you are free to use or display it in any way on personal sites without damaging the reputation of your subject, as long as it is not for any commercial purpose whatsoever. It is also permissible to use such images for editorial purposes, such as media publications, as long as it does not harm the reputation of the subjects. You can also use your photos freely for educational purposes or for your own commentary.

One has the right to take pictures almost anywhere, but publishing certain photos might be an issue. You cannot just click a super star’s picture and use it to endorse your new start-up without taking the permission of that superstar. This is called the Personality Rights in America. You cannot use someone's likeness for commercial purposes without their express permission. The same goes for many famous landmarks and some National Parks. You can freely shoot the photos, but selling them for commercial purposes may require a permit or additional fee. If you decide to make a film and you want to shoot it at the Taj Mahal, you will have to take permission from the authority of that monument. One cannot publish a photo that paints a person in a false light. You cannot publish a photo that gives away private information about someone.

Some popular web services like Instagram require you to grant usage permission to them when you upload pictures. This doesn't mean they get ownership of your photos, but it does mean they can use them any way they like. Other services, like Flickrallows you to set who can and can't use your photographs. If you don't want to sell or make public any of your pictures, then make sure you're using a service that leaves all the rights in your hands and be sure to check out Creative Commons for an easy way to license your photos.

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