Street Photography: Children — law, morals & ethics, commonsense

Henri Cartier-Bresson was a 20th century French photographer. He is considered the father of photojournalism and perhaps the most important pioneer of street photography.

Cartier-Bresson was more than a street photographer. His images transcended the genre in a way that street photographers aspire, but rarely achieve. Cartier-Bresson was a humanist photographer. His photographs tell the stories of human endeavor, customs, social and economic class, human character and characteristics, behavior and distinctiveness. His photographs purposefully witness human nature.

Cartier-Bresson walked the streets of the world from the 1930s through the early 1970s, after which he retired to drawing and painting until his death in 2004.

There was little fear of public photographers while Cartier-Bresson walked the streets of the world with his 35mm Leica, unlike the last four decades which have seen increasing fear of public photography, rising almost to hysteria after 9/11. Today, street photographers, particularly those photographing children, must balance their desire to capture candid storytelling moments, with the potential of physical attacks, and social media witch hunts with the potential to destroy one's reputation and career.

In 1952, Cartier-Bresson published his book “Images à la Sauvette.” The English-language edition was titled “The Decisive Moment.” In a 1957 interview in the Washington Post, Cartier-Bresson discussed the book and what he meant by the decisive moment, saying.

“Photography is not like painting. There is a creative fraction of a second when you are taking a picture. Your eye must see a composition or an expression that life itself offers you, and you must know with intuition when to click the camera. That is the moment the photographer is creative. Oop! The Moment! Once you miss it, it is gone forever.”

“Once you miss it, it is gone forever,” is the crux of the dilemma facing street photographers in the twenty-first century. Is it still possible for street photographers to make candid images in public without first gaining permission from the subjects? It's a question controlled by law and guided by morals, ethics and commonsense.

In the U.S. where I'm based, the law is clear. In public spaces people have no expectation of privacy and, under the law, photographers may make photos of people in public spaces, regardless of their age.

Whether or not you may lawfully use the images is a totally different legal matter. Generally you don't need permission to use the images editorially, such as for news or fine art photography. If used commercially, then permission must be obtained. One must recognize, however, that there are potential privacy issues even with the editorial use of images taken in a public space, such as publicly disclosing private facts or portraying a person in a false light, but that's outside the scope of this discussion.

It's important to recognize that privacy laws in nations across the globe may be and are often different than in the U.S. When in any nation, photographers need to understand the local laws that will affect their photography before reaching for their camera.

The climate for street photography has been in flux during the last four decades. Fear of street photography of children dramatically increased with revelations of pedophile trusted coaches, teachers and clergy. That fear reached an almost fever pitch as news of the existence of pedophiles' collections of photographs of children in parks and playgrounds were revealed, as trial evidence.

As the twenty-first century began, 9/11 raised fears to almost hysterical levels of just about any public photography. Photographing bridges, highways, office buildings and, court buildings became highly suspicious. Many people saw a pedophile behind almost every camera used to make photographs of children in parks, playgrounds or walking down the street.

Today, much of that has calmed down. It's been eighteen years since 9/11 and time has a way of allowing perspectives to change. Smartphone photography has also changed public photography attitudes. With ubiquitous smartphone use to capture so many of life's scenes, the public has become numb to their presence and being their subject, save one exception, street photography of children.

Fresh stories of pedophiles in the news and politicians often unfair rants about specific groups are keeping parents and the general public wary and highly suspicious of anyone attempting to photograph children in public. As a street photographer, I am more than sad that so many people are immediately suspicious of me when photographing in public, thinking of me as a potential “Chester the Molester,” without cause, but we live in a different time than when I was growing up.

Wherever photography of children in public spaces, without permission, is legal, there are still questions that photographers should ask themselves before making those photographs of the decisive moments in children's lives.

“Is photographing children in public without their parent's or guardian's permission moral and ethical?”

I don't believe it's immoral or unethical to photograph children in public spaces without permission, unless your images will reveal something private about them better kept secret or cast them somehow falsely. An image that would obviously reveal their identity with where they live or regularly play is a serious problem.

“Is it unreasonable for parents to be protective of their children when they see photographers attempting to photograph them in public?”

Being a parent myself, I don't think that's unreasonable.

“If a parent sees you photographing their child and waves you off, should you stop, even though they have no legal right to require you to back off?”

I believe that if a parent tells you to not to photograph their child, you should walk away.

“When you see a decisive moment in a child's life, must you stop, and seek permission before photographing it?”

There's a reason that Cartier-Bresson didn't call the decisive moment, the decisive minute … or two. If I see a special moment, I am prepared to deal with the fallout and will make the image, then seek permission to use it after the shot is made, if possible. If permission is denied, I will delete the image.

When making photos of children, I believe we should seek the permission of their parents either before or after making the images, if possible, even if their use is solely editorial. I recently shot a few images of children at the Zoo, but ended up deleting them as it wasn't possible to speak with their parents. If the images are to be used commercially, permission becomes a legal necessity.

I answered the above questions with this axiom in mind. There is a major difference between making and using an image of anyone, including children, but in my opinion, children are a very different photographic subjects than adults. Children are more vulnerable and susceptible to harm. Photographs of children can be seriously problematic if they can be readily used to locate and subsequently harm them.

Every situation involving street photography of children should be approached thoughtfully. I submit that each street photographer should consider this. When a person sees someone with a camera, is it unreasonable for them to wonder what will happen to the photos being made of themselves and their child? Is it unreasonable for them to question if those images will end up on the Internet for the world to see whether they like it or not?

Commonsense is key to preparation before going out in public to be a street photographer and to handle yourself while shooting.

If “caught in the act,” I think the worst action you can take is to deny what you're doing or be uncooperative with parents, nannies or guardians. If they wave you off, stop. If you still want to try to shoot their children, walk over to them, be friendly and talk about it. There may be decisive moments yet to come. They may say okay.

Avoid escalating the situation to a major confrontation. Don't go at them that it's your legal right to photograph their children. The confrontation might end up with you being publicly humiliated, physically assaulted or having to talk with the police and possibly detained by them. While you're within your rights to make the photos, you never know what will happen in the heat of the moment, particularly with an overly protective parent.

When speaking with parents, I explain that I'm a fine art photographer and photojournalist and tell them what caught my eye to cause me to photograph their child. I tell them how I plan to use the image. If I've already captured some images, before they can say, “Delete the photos,” I'll offer to email them a copy of the best image I made of their child. I will typically show off the photos to them via my camera's monitor. Most of the time I hear, “Wow, please send me some.” I always carry my business cards to help identify myself as a photographer.

You don't need a model release to use the photos editorially, such as with fine art images, but if you can obtain permission to make and use the photos via a signed release, you've eliminated future problems. I have a model release app, “Easy Release” ready to go in my smartphone for that purpose.

Confrontations and other considerations aside, always be respectful and considerate of your street photography subjects. If they don't want to be photographed, walk away and look for other opportunities.

(Disclaimer: The author of this article isn't an attorney. This article is presented for informational purposes only, not for the purpose of providing any legal advice. The opinions expressed in this article are not to be construed to be legal opinions or the opinions of any attorney. You should seek appropriate counsel for your own particular situation. Please note that this post is primarily directed toward readers in the United States. If you are involved in photography outside the United States, you are highly encouraged to find and understand your legal obligations in whatever nation you're in.)