With the Spring/Summer 2018 runway shows swiftly approaching, it seems an appropriate time to look at the legality of one of everyone's favorite fashion month pastimes: Street style photos. While the various fashion weeks center - at least in theory - on brands' seasonal garments and accessories, the street style associated with each season's shows has - for seasons now - rivaled the runway as the focal point. Publications, including Vogue, W, and WWD, dedicate countless galleries to street style and some of the most photographed figures have gone on to land big-name ad campaigns thanks to their ability to influence how others dress. But what about the people behind the lens?
First thing’s first: Street style photographers – those ranging from Tommy Ton and Le21eme's Adam Katz Sinding to the lesser known guys – have copyright protection in the photos they take. As soon as they snap an original shot (i.e. the work is “fixed in a tangible medium of expression” – that is the legal jargon), copyright law is a play. Because the originality bar for copyright is so low, it is safe to say that most photos easily make the cut, and copyright protection applies - with the photographer as the copyright holder (unless or until he/she assigns to another party, such as a magazine for which he/she has been hired to take photos).
Now that we have established that photographers have legal rights in their photos, what about the perfectly styled individuals milling around on the sidewalk before, during, and after shows? If they happen to get snapped in a photo, are there any laws that should prevent the photos from making their way onto a website?
Since the month-long strong of shows start off in New York, let us turn our attention to New York state law. As a general rule, a photographer – or any regular person with a camera, for that matter – can take a picture of anyone who is in a public place. So, snapping photos of people on the sidewalk is perfectly legal. And it is also legally permissible to post those photos on a blog or website thereafter.
A problem could arise, though, if money changes hands, as is the case when: a) a street style photographer signs a contract and agrees to provide photos for a publication in exchange for compensation; b) he/she uses those photos on his/her own website, if that site serves as source of advertising revenue (a more indirect example that the former); and/or c) some variation thereof.
In New York, the right of publicity, which is codified in New York’s Right of Privacy statute, provides protection for a person’s name, portrait, picture, and voice when used for advertising or trade purposes without that person’s consent. With that in mind, an argument could certainly be made that taking and then selling a street style photograph, particularly if the subject of the photo is a celebrity or model or influencer, violates his/her right of publicity if the individual in the photo did not consent to this.
The same argument could likely also be made even if the photos at issue are not sold but are placed on a website that boasts advertisers, as the presence of the photos – as content on the website – are arguably be used for a commercial purpose.
Luckily for the street style photographers amongst us, there are a couple of exceptions to the rule. Primarily, there is the First Amendment exception of "newsworthiness," which states that a person cannot be held liable for using another’s name, likeness, or other personal attributes when he is reporting or commenting on matters of public interest. Courts typically interpret “newsworthy” very broadly. For instance, in Messenger v. Gruner + Jahr Printing, the U.S. Court of Appeals for the Second Circuit noted, “A wide variety of articles on matters of public interest—including those not readily recognized as ‘hard news’—are newsworthy.” So, commenting on someone’s style or on street style, in general, by way of street style photos could very well qualify for this exception.
Second is another First Amendment-related defense, which relies on fact that some photos are artistic expressions. Between 1999 and 2001, Philip-Lorca diCorcia, an artist and photographer, took photographs of individuals walking through Times Square without their knowledge. In 2001, he exhibited some of the photos at an art gallery and sold a limited number of them. Erno Nussenzweig, a retired diamond merchant, who was depicted in one of diCorcia’s photos, filed suit against diCorcia and the art gallery exhibiting the photos for exhibiting and publishing the portrait without permission and profiting from it financially. The suit aimed to halt sales and publication of the photos featuring Nussenzweig and also sought damages.
New York’s Supreme Court dismissed the suit, holding that a photographer’s right to artistic expression was more important that a subject’s right to privacy. The court pointed out that New York courts “have consistently found ‘art’ to be constitutionally protected free speech, that is so exempt.” The decision also noted that not every photograph is considered art but that “New York has been fairly liberal in its protection of what constitutes art.”
While not every street style photograph will be shielded from potential liability by the artistic expression defense, there are surely some that would be, particularly as quite a bit of the street style photography we see gives us a glimpse of something we might not otherwise see.
As Adam Katz Sinding of Le21eme noted several years ago, “I always think of some kid sitting in Iowa, or whatever, who is probably never going to go to Paris Fashion Week, and I am trying to show what it felt like to be there and what these people look like. What the mood was like and just give an idea, because before I went, I had no idea what it was going to be like and it was just so cool to look at Tommy’s site and be like, ‘Wow, that looks really fucking different than what I’m experiencing.’”
Chances are, the photos we are accustomed to seeing during fashion month very well might be protected. So, snap away photogs.