Anybody can sue almost anybody for almost anything in this country. The job of a release is twofold: One is to make sure that if you are sued, you have a defense in court. The other, and in some ways the more important, is to dissuade your photographic subjects from filing a suit by making it clear at the outset that they are giving their permission to be photographed.
Q: Am I legally permitted to photograph strangers in public places? Are city and state parks considered public places?
Note that even in public places, police officers have broad powers to protect the public from possible harm and to enforce the local ordinances. If a cop tells you to stop, you’d better obey promptly and defer the arguments until after you’ve checked with a lawyer.
Q: If I photograph a man doing something silly such as slipping on a banana peel and the picture appears in a newspaper, can he sue me for holding him up to ridicule?
Q: If I photograph a crowd at a baseball stadium and it’s published, but the boss of one of the people in the audience recognizes him as an employee who called in sick that day and fires him, can he sue me for causing him to lose his job?
Q: If I take a picture of a seedy neighborhood and a magazine editor writes a caption describing it as a red light district, can I be sued for defamation by someone shown in the picture?
Q: If I stand outside a store and take a picture for publication of someone inside, either through the door or store window, is that a violation of some sort?
That leaves the question of whether the photos are obscene. If they are, you could be charged with violating state and/or local obscenity laws. What is obscene? The U.S. Supreme Court has struggled with this question. Justice Potter Stewart characterized it as “trying to define what may be indefinable.” The Court’s guidelines, if you can really call them that, are hardly more than the instinctive reactions of the people in the street:
- “(a) whether ‘the average person, applying contemporary community standards’ would find that work, taken as a whole, appeals to the prurient interest… (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, political or scientific value.”
The kicker is the “community standards” part, especially in an internet era. Not long ago, a San Francisco couple running an internet website found themselves indicted for violating obscenity laws in Tennessee, and the community standards in those two communities are presumably quite different.
Q: If I photograph my young children in the bathtub and send the film out for processing, could the processor turn the film over to the police? Could I be prosecuted for child pornography?
There are occasional reports of over-zealous lab employees inappropriately blowing the whistle over photographs no more offensive than the classic naked baby on a bearskin rug. These days, you are better off using digital cameras and printing your own photos than using a lab where unclothed children are in the picture.