This is written in response to a question on another forum.
I know it was not directed to me but I would like to tackle the questions about how, what and releases.
This is another of myths that I wish to tackle because there is so much misinformation floating around the Internet regarding the subject.
Today, we live in a very meistic society. Meistic is my word for meism or myism, the state of the totally self-involved individual. They do not understand that it is possible to have an interest in other people to the extent that you would wish to take their photograph. They think that they are so special and that they own all the meistic rights they wish to proclaim. Add that to the misinformation about rights and privacy that is spread on the Internet and to the over blown media attention to pedophilia which is more about control than it is true concern for children. The primary problem is uneducated self-centeredness and over inflated ego of a misinformed society.
Here is the first thing I would like to get across: There is absolutely no such thing as privacy in a public place. To think that, is simply an oxymoron. If a person is in a public place or where they can be observed from a public place there is no expectation of privacy, i.e. their privacy cannot be invaded. Now if that person is in a private place, a home, a public restroom, a dressing room, some place where there is an expectation of privacy even though they can be observed from a public place, that is a different matter. In that case you just should not take the photograph rather then be concerned about a release. That is simply due respect to another individual.
Having coffee in Starbuck's is most definitely a public place and as a photographer you have every right to take the person's photograph. However, like many places, Starbuck's is private property. It is both private property and a public place, because it is accessible at their discretion by the public. In this case, the owner or persons in charge of the property can ask you not to take photographs, that is their right on their property. You would need to comply or risk being in trespass. They have no right to make you delete any photographs you have taken even though if asked you might wish to in order to assure your future welcome. That is the photographer's call.
Of course, I am not saying that you do not run a risk of having the tar beat out of you by some meistic dipstick. That is a possibility. Then you have the right to press charges.
There is also considerable misinformation about having a model release or a property release. For some things, that is truly necessary. For an amateur photographer it is almost never a true necessary. A release only comes into play when you wish to use a photograph commercially, meaning you wish to use in an advertising fashion, then you most assuredly need a model release.
In the case of this photograph, even though the person is perfectly recognizable the photographer can display that photograph on his web site or on a blog. He could actually sell the photograph as photojournalism, if it had new worthy value. It can be used as a feature photograph illustrating an article as long as the article is not selling a product. Most importantly and the most applicable use here, it can be ART and even sold by the photographer on his fine arts web site without a release. There are a number of things that can be done with a photograph of a person that is recognizable that does not require a model release.
It is always good to get a release, it never hurts, because at some point in the future there might be the opportunity to make a sale that without the release you could not do. If you have no desire to profit from the photograph you do not need a release. Of course, you cannot use it in a way that is degrading or damaging to the person or persons in the photograph. However, you cannot use without risk the photograph in any manner that would intentionally make fun of, disgrace or embarrass the individual even if you do have a release.
Many photographers have fallen in line with the misinformation. I read it all the time on the forums. A major reason is that we have a couple or three generations of individuals that have no civics education. What they know of government and rights is what they get off the Internet or from the media. They do not know that this is a right that was granted and guaranteed by the Bill of Rights and upheld by the Supreme Court. This is the reason I so enjoy harassing Metro.
Here is what is going to happen if we do not exercise our rights, stand up for our rights and this is already taking place in photography. It will be said so often that uninformed people will accept it as fact. Eventually, the right will be taken away and even those that are losing the right will cheer out of ignorance. Rights are not taken suddenly, they are slowly ebbed away. It is a sad situation. I am sad that the young people today do not enjoy the photographic freedom that I enjoyed at their age. I am sad that they are afraid without cause to even step on private property to take a photograph. The only way to reverse that is for people to stand up for their rights and I am afraid we are too weakened, too timid, too intimidated to do that.
[I am not a lawyer (I am ever so thankful) and accept no responsibility for the legality of the above rant. You must consult a lawyer.]