I am a photographer and I go on dates in NYC quite frequently. One of the first date ideas that I sometimes suggest is a photo walk, which I usually prefer to do as it is fun and free.
If we go on a photo date, I usually bring my camera and we take photos at a public place (e.g. shops at SoHo or the High Line park). Often we take pictures of each other. Obviously, I always get their (verbal) permission before taking any photos of them. Usually, they’re very fond of the photos I take as I have a nice mirrorless camera with a decent lens.
If my date ends up ghosting me after the date, am I allowed to post any pictures of them that I took with my camera on social media (e.g. Instagram), without getting their explicit permission? Is this legally allowed?
I tried doing some digging online about this, and it seems like any photo I take of another person in public is fair game since they did not have any reasonable expectation of privacy there.
What about photos that they took of me with my camera? Am I legally allowed to post those?
In my mind, if I’ve spent the money traveling over to them (I live very far from the city) and the time taking photos with them, and they ghost me (which I find to be extremely disrespectful), I might as well get something out of it by posting any pictures that I thought were really nice on social media, or as part of my portfolio.
There is no expectation of privacy in the US if you are in public. You could literally walk up to a random stranger, take their photo and post it online. This is basically the entirety of the genre of street photography.
What you cannot do is license that photo for commercial use, since you don’t own the rights to their likeness.
Thanks for the info. Does using a photo in a portfolio count as using it for commercial use, since it (indirectly) leads to commercial gain?
No. You cannot sell these images for third parties to promote any kind of goods or services etc., but you can publish them and even sell for editorial porpoises.
Commercial use in this context means the suggestion or implication that the subject of the photo endorses or supports a product or service.
Look at it in the terms of Hollywood paparazzi. They can shoot a picture of Tom Cruise walking down the street and sell it to TMZ all they want, even though that’s for commercial gain. What they cannot do is use the picture in an ad for Tag Heuer watches, because that implies that Tom Cruise endorses Tag Heuer watches.