When a photographer takes a photo of a human subject, the photographer owns the copyright unless there is an agreement to the contrary. However, depending on the circumstances, the subject may have privacy rights that are affected by the photograph.

Laws vary by jurisdiction, but in general a photographer may take photos of people who are in public without any special permission. Even if the subject is on private property, a photographer can usually take photos from a public vantage point. Entering someone’s private property and taking photos of them without permission could create liability for trespass and “intrusion upon seclusion,” which is a violation of privacy rights. Privacy laws can also be violated when photographs are used for advertising or other commercial purposes without permission. This may be termed a violation of the right to publicity.

In 2013, photographer Arne Svenson exhibited photographs of his New York City neighbors in their apartments, taken with a telephoto lens from Svenson’s own apartment across the street, without the neighbors’ knowledge or permission. The subjects were largely unrecognizable in the photographs. In the 2015 case of Foster v. Svenson ^[1], a New York appeals court upheld a lower court’s decision that this was not an invasion of privacy under the relevant state statute, because the photographs were not used for advertising or trade purposes.

Whenever the issue of the right to privacy may be raised, it is advisable to obtain a signed model release if possible.

1. Foster v. Svenson, 128 A.D.3d 150 (2015).