Is It Legal for Others to Street-Shoot Me While I'm Strolling in Taikoo Li, Chengdu with Someone of the Opposite Sex?

September 4, 2023, 15:03:00

Recently, a street photography video from Taikoo Li in Chengdu has drawn public attention. Street photography has a long history and has become even more popular with the rise of social media and short videos. As a reflection of new technological means impacting social public life, street photography is gradually finding its place between art and law.

Back in 2019, Taikoo Li in Chengdu issued a notice banning commercial street photography to "protect personal portrait rights." However, social media is filled with "street photography" pictures and short videos. The popularity of street photography remains high in places like Sanlitun in Beijing and Wukang Road in Shanghai.

How can we clarify the artistic and legal boundaries of street photography? Through discussions with street photographers and lawyers, we attempt to answer this question.

01 Pressing the Shutter on the Street

A red, old-fashioned bicycle has appeared on the streets of 57th Street and Fifth Avenue in New York for decades. Since 1996, a figure in a dark blue French work uniform and khaki pants has been aiming a camera at New York's street fashion. This is the story of Bill Cunningham.

At night, he would change into a shirt and suit, put on a fluorescent yellow and orange-striped vest worn by road workers, and continue to ride that red bicycle across the city to photograph high-society banquets. What remained unchanged was an old-fashioned Nikon camera in his hand.

Until the last few months of his life, Cunningham still rode through the streets. He once wrote in The New York Times, "I've always taken pictures in various places, trying to keep a low profile. My main goal is to make myself invisible so that the photos you capture are more natural." Cunningham, known as a "legendary street fashion photographer," described the gifts from the streets and the crowd: "When I'm frustrated in the office, I'll go out. Once I'm on the street and see the crowd, I feel much better." "I feel the street talking to me."

This is a typical example of street photography. Street photography is a form of photography that captures daily scenes in a natural state in public places, usually city streets. Street photographers almost always choose strangers as their subjects. Emerging in the 1890s, street photography reached its heyday in the 1970s, and its voyeuristic aesthetics were introduced into art galleries and museums. Although photographing without the subject's knowledge or prior consent can sometimes spark moral debates, street photography has always been regarded as an important art genre in the field of photography.

Cunningham's era has passed. Our reporter talked with Chang An, a street photographer who has been active on the streets for decades. He quickly mentioned the latest regulations in the Civil Code. Effective on January 1, 2021, the Civil Code states that "without the consent of the portrait right holder, the right holder of the portrait work shall not use or publicly display the portrait of the portrait right holder by means of publication, reproduction, distribution, lease, exhibition, etc." This directly requires street photographers to obtain the consent of the photographed person before using their street photography images.

From the perspective of street photography, Chang An and others are facing more and more restrictions and higher risks.

Chang An is tall and walks quickly. As he shuttles through the streets, he always has a smile on his face, and his "hehehe" laughter often accompanies him, which is a great way to ease the atmosphere when he is discovered taking pictures.

Long-term street photography is bound to cause some frictions. With years of experience, Chang An rarely has conflicts with people now. "I won't shoot those who stare at me," he said. "If someone asks me to delete the photo, sometimes I will." He makes up for small regrets by taking a large number of photos. "I walk at least three to four hours a day, so I can always capture something good." He emphasizes, "You need to have good physical strength."

Following the rules is Chang An's self-discipline. In addition to the Civil Code, he also reads the Picture Editing Manual to understand relevant professional norms. In reality, street photography may lead to complaints, and the photographed person may call the police. In such cases, he will apologize and explain. Some people who once had conflicts with him have even become friends later. "There are possibilities for different interactions and transformations."

"It depends on the purpose of the shooting," Chang An said frankly. "Some people take pictures of beautiful women to show off and post them immediately. Such posts gain high popularity and may attract a group of fans." But he won't do that. "I haven't posted any immediate street photography in the past one or two years. The pictures I post are from five or ten years ago. I prefer to record, which also reduces the risks."

▲On June 26, 2013, Bill Cunningham photographed on the streets of New York. Photo/Visual China

02 There's No Such Thing as "Tacit Consent" in the Law

Compared with Chang An's practical methods, the legal regulations are more explicit and specific.

Lawyer Wan Miaoyan from Sichuan Dingchi Law Firm told Southern People Weekly that the Civil Code, which came into effect in 2021, has clearer regulations on portrait rights compared to previous laws. It excludes the common legal basis for the abuse and infringement of portrait rights. "Without the consent of the portrait right holder, the right holder of the portrait work shall not use or publicly display the portrait of the portrait right holder by means of publication, reproduction, distribution, lease, exhibition, etc." In other words, street photography enthusiasts must obtain the explicit consent of the portrait right holder before using their street photography works.

Contrary to the public's common understanding, Lawyer Wan Miaoyan emphasized that according to the Civil Code, profit is not a necessary element for constituting the infringement of portrait rights. "Even if the photographed work is disseminated and spread without the purpose of commercial use, the street photographer still faces the legal risk of being sued for infringing portrait rights in civil legal relations."

The "Ge You Slouch" case is a typical judicial case involving portrait rights infringement and also reflects the legal constraints in the current social media era. Lawyer Wan Miaoyan explained. "Ge You Slouch" was included in the list of popular Internet phrases in 2016. The term comes from the character Ji Chunsheng played by the famous actor Ge You in the TV series Home with Kids. The relaxed image of the character lying completely slumped on the sofa was named "Ge You Slouch" by netizens.

Many new media accounts once蹭热点 (rode the popularity wave) by using "Ge You Slouch" for marketing, and related emoji packs were everywhere. Later, Ge You sued them. Judicial data shows that as of late March 2023, the China Judgments Online has published 544 cases related to "Ge You Slouch," and Ge You won 99.6% of the cases, receiving a total compensation of 7,594,392 yuan.

"In the 'Ge You Slouch' cases, the infringers used Ge You's image in the TV series without obtaining his explicit authorization and used his portrait for commercial activities without following legal procedures. Almost all such lawsuits will be supported by the court," analyzed Lawyer Wan Miaoyan. The most significant significance of this case is that the effective judgment of the court introduced the judicial concept of portrait rights into daily life, enabling the public to have a deeper understanding of the concept of "portrait rights": one cannot casually use someone else's face as a joke.

There are exceptions to the legal protection of portrait rights. The Civil Code has five exceptions for the use of portrait rights:

1. Using the publicly available portrait of the portrait right holder within a necessary scope for personal study, artistic appreciation, classroom teaching, or scientific research.

2. Inevitably creating, using, or publicly displaying the portrait of the portrait right holder for news reporting purposes.

3. Creating, using, or publicly displaying the portrait of the portrait right holder within a necessary scope for the performance of official duties by state organs.

4. Inevitably creating, using, or publicly displaying the portrait of the portrait right holder for the purpose of presenting a specific public environment.

5. Other acts of creating, using, or publicly displaying the portrait of the portrait right holder for the purpose of safeguarding the public interest or the legitimate rights and interests of the portrait right holder.

"This clause excludes the legally permitted circumstances for using portrait rights from the legal perspective. In other words, any unauthorized use of portrait rights, except for the above five statutory circumstances, is illegal," Lawyer Wan Miaoyan told our reporter. Regarding the recent street photography controversy in Taikoo Li, Chengdu, she believes that based on the existing video materials, it can be confirmed that the photographed woman made a clear gesture of waving to the photographer. "The woman waved to the street photographer, which is an expression of tacit consent to be photographed. Just like hailing a taxi, from her specific positive behavior of waving, it can be inferred that she is willing to be photographed. And based on her age and intellectual level, it can be determined that she is aware of the consequences of street photography (uploading to the Internet)." Lawyer Wan Miaoyan added, "According to the legislative spirit of the Civil Code, an important basis for protecting portrait rights is the consent of the portrait right holder. If the portrait right holder clearly indicates consent to be photographed, the right holder of the portrait work, such as the street photographer, has the right to use the portrait work."

The reporter of Southern People Weekly noticed that some professionals believe that stricter standards should be adhered to in the authorization of portrait works. "For the commercial use authorization of portrait works, the principle of written authorization should be adhered to. The portrait right holder should clearly authorize the commercial use. Tacit consent may not be regarded as the portrait right holder's waiver of their rights. In other words, the expression of tacit consent is not equivalent to legal consent."

As early as 2019, Taikoo Li in Chengdu issued a notice banning commercial street photography. Taikoo Li also put up warning signs saying, "Enhance prevention awareness and protect personal portrait rights." Similar warnings can be seen in business districts such as Sanlitun in Beijing and Wukang Road in Shanghai. On the other hand, street photography in these places never seems to stop.

Regarding the public opinion storm caused by street photography this time, Lawyer Wan Miaoyan emphasized to the reporter of Southern People Weekly that Article 47 of the Constitution clearly protects citizens' freedom of artistic creation. "However, it must be emphasized that when citizens exercise their legal rights, the bottom line is not to infringe upon the legitimate rights and interests of others. The same applies to street photography. Any artistic creation must be legal, and this is the bottom line."

From a legal perspective, there is no such thing as tacit consent; written consent is required. In reality, street photography can generally be divided into two categories: one is commercial activities where the photographed person clearly consents, and may even make an agreement with the photographer for "street photography"; the other is when street photographers randomly capture "passers-by" on the street. In the latter case, the photographed person may feel offended. If they do not consent, it means their portrait rights are infringed at the legal level.

▲Photographers stationed on the streets of Taikoo Li, Chengdu. Photo/Hongxing News, Lü Guoying

03 When Mobile Phones Got Cameras

"It seems that since mobile phones got cameras, all kinds of problems have emerged," Chang An said based on his decades of street photography experience.

He mentioned the case of street抓拍 (candid shooting) of the assassination of US President Ronald Reagan in 1981. The photographer Salgado happened to capture the scene and took 76 photos in one minute. In an era when television media were not well-developed, Salgado sold some of the photos to newspapers and magazines. The photographer became famous and earned a huge profit, allowing him to buy a villa in the most luxurious area of Paris, France.

"The situation is different now," Chang An analyzed. Today, we are in an era of universal communication. With cameras on mobile phones, various problems arise when people participate in street interactions. Taking his street photography as an example, the subjects may be a couple, but if they break up later, they may be reluctant to have their photos displayed. According to the new regulations of the Civil Code, Chang An would face trouble.

On the streets of "Internet-famous" business districts such as Taikoo Li in Chengdu, Sanlitun in Beijing, and Wukang Road in Shanghai, street photography is everywhere. "The photography circle calls these photographers 'old masters,'" Chang An analyzed. "These 'old masters' often haunt the streets of the above Internet-famous places, looking for things that can be exciting. They post these photos or videos on forums and social media to get likes. This is their pattern, adding some spice to their ordinary lives. But some beauties are willing to be shown, while others are not. In reality, many times, multiple photographers 'surround' one person, and the photographed person is in an isolated state."

In Chang An's view, in this era of universal communication, the concept of privacy still exists. For example, if a person has a facial scar that they don't want to be shown, but the photographer is eager to display it, it is a serious infringement of the photographed person's rights. Ignoring the wishes of the photographed person for the sake of benefits after publication violates the professional ethics of photographers. "It's as bad as stealing."

During the street photography controversy in Taikoo Li this time, Xiaomi, the video shooter and photographer, said in an interview with the media that after receiving a private message from the person involved, the video has been deleted. Street photography should respect the wishes of the people appearing in the shots.

Chang An's current street photography works are stored in his storage disk. He has hardly publicly released any of his current works in the past one or two years. "My photos are mostly from the past five or ten years. Nowadays, people are impatient and hope to make quick money. They lack the patience to let things settle." He remembers the famous street photography work The Kiss of Victory, which features a soldier and a nurse kissing on the street after the war. Decades later, many women claimed to be the nurse in the photo, and this street photography has instead become a classic and a legend. Sometimes, people even rush to be the "person in the painting."

▲On October 23, 2012, 89-year-old George Mendonsa held The Kiss of Victory in Middleton, Rhode Island, USA. He is the protagonist in the photo. Photo/Visual China

In the current bustling street photography and instant sharing, Lawyer Wan Miaoyan admitted that the infringement of portrait rights is widespread, but not every photographed person will seek legal protection or file a lawsuit. Professional street photographers are often aware of such "infringements." From a legal perspective, once a law is promulgated, it is considered publicly known, and everyone is presumed to be aware of it. "Many people do not abide by the law not because they don't know it, but because they make a choice after considering the benefits and risks."

Such choices are not always legal or correct. Facing conflicts and risks, Chang An responded to similar street photography controversies, "There are always negative things outside. What we lack is self-reflection on what role we play and what our purpose is." The answer to this question is open-ended.

(The name "Chang An" in the article is a pseudonym.)