Working with people: ethics, consent and representation

Many of the most powerful fine art photographs show people: portraits, families, communities, strangers on the street, performers in staged scenes. Photographing people for art raises questions that go beyond technique. Who agreed to be photographed, and to what? How are they represented, and who decides? What happens when images travel to galleries, books and websites far from the people in them? This lesson covers the ethics of consent and representation, the law on using people's images in art in Canada and the United States, Indigenous protocols, and practical tools such as releases and consent records. It builds on PHOT-230, which covered photographing in public, and goes further into the particular situation of art.

Why art raises particular questions

News photography has codes of ethics and a clear public-interest purpose. Commercial photography has contracts and model releases. Fine art sits in between. It is generally protected as free expression, and it often has no client. But art also aestheticizes: it turns real people into images that are admired, sold, collected and interpreted, sometimes for decades. A person who agreed to a snapshot may not expect to appear two meters tall on a gallery wall or in a book sold internationally. The artist's control over meaning, which is one of art's strengths, is also a source of power over the people depicted.

Informed consent

Informed consent means that a person understands what they are agreeing to and agrees freely. In art photography, that includes understanding what the project is about, how images might be used (exhibition, book, website, sale, social media), whether they will be named, how long the images might circulate, and whether they can withdraw. Consent is a process, not a single moment. For long-term projects, check in regularly, especially if a person's situation changes or if you plan a new use.

Consent should be proportionate to risk. A street photograph of a crowd at a festival, exhibited in a group show, carries different risks from an intimate portrait of a person in recovery from addiction, published in a book with their name. The more sensitive the subject, the more care is needed.

• Explain the project in plain language, and give a written summary people can keep.
• Say clearly how images might be used, including sale of prints and online publication.
• Ask whether people want to be named, and respect their choice.
• Offer to show images before they are exhibited or published, especially sensitive ones.
• Record consent in writing or, where writing is inappropriate, by an audio or video record with permission.
• Keep promises, such as sending prints or invitations to the exhibition.

People in vulnerable situations

Extra care applies when people may not be able to give free, informed consent or may face harm from being shown: children, people experiencing homelessness, people with cognitive disabilities, people in crisis, patients, prisoners, refugees and people in precarious immigration situations. Ask whether the person truly has the capacity and freedom to say no, whether the images could expose them to stigma, legal risk or violence, and whether a guardian or support worker should be involved. For minors, obtain consent from a parent or guardian and assent from the child. Consider whether the project can be made in ways that protect identity, such as not showing faces, using pseudonyms or not naming locations.

Representation and the right to tell a story

Beyond consent, artists must think about representation: the overall picture the work creates of a person, group or place. Long histories of photography have shown some groups mainly as exotic, poor, dangerous or in need of rescue. Repeating those patterns, even unintentionally, can cause harm. Ask whether your images reinforce stereotypes, whether the people depicted would recognize themselves, and whether they have a say in how they are shown. Collaborative approaches, where subjects help decide what is photographed, choose images, write captions or co-author the work, are increasingly common and often lead to richer projects.

Insider and outsider positions both have value and risk. An insider may have access and trust but miss what an outsider would notice; an outsider may see freshly but misunderstand or exploit. Whichever you are, acknowledge it and build relationships that give the people in the work real voice.

The law: using people's images in art

The law differs significantly between Canada and the United States, and within each country. In both, art generally receives more protection than advertising, but neither gives artists unlimited freedom.

In the United States, protection of a person's image comes mainly from state right-of-publicity and privacy laws. New York's Civil Rights Law sections 50 and 51 prohibit using a living person's name or likeness for advertising or trade purposes without written consent. In Nussenzweig v. diCorcia, a man photographed without his knowledge on a New York street sued after his portrait was exhibited and sold as part of a fine art series. The trial court dismissed the case in 2006, holding that the art photograph and its sale in a limited edition were protected expression rather than trade; the appeals courts affirmed in 2007 on the narrower ground that the one-year time limit to sue had expired. Courts in New York and elsewhere have often treated art, including limited-edition prints, as protected expression under the First Amendment.

California Civil Code section 3344 and similar laws in other states protect against commercial use of a likeness, with exceptions for news and expressive works that vary from state to state. Artistic protection is broad but not absolute, especially if a work is used in advertising, merchandise or posters. Signed releases remain good practice, particularly for sensitive subjects, minors and any commercial use.

Releases for art projects

A model release is a written agreement in which a person grants permission to use their image in specified ways. For art projects, a good release covers exhibition, sale of limited-edition prints, publication in books and catalogs, online display, publicity for exhibitions and archival use, and it states whether the person will be named. It should be written in plain language the person understands, translated where needed, and signed and dated by the person or, for a minor, a parent or guardian. Keep a copy linked to the relevant images in your catalog, and give the person a copy.

Releases do not replace ethics. A signed form does not make an exploitative image acceptable, and a person who regrets participating deserves a real conversation, even if you are legally entitled to proceed.

Indigenous protocols and community consent

When working with Indigenous people and communities, individual consent may not be enough. Many Indigenous communities have their own protocols governing who may photograph ceremonies, sacred sites, objects and knowledge, and how images may be shared. Some ceremonies may not be photographed at all.

In the United States, many tribal nations have their own laws and policies on photography, especially of ceremonies and sacred sites; some, for example, prohibit photography of certain dances or villages without permission. Contact the tribal government or cultural office before starting, follow its rules, and expect that some subjects may not be photographed at all.

Good practice includes building relationships before photographing, involving community members in decisions about images and captions, sharing benefits such as prints, fees or credits, and agreeing on how images may be used and stored in the future.

Practical habits

Carry release forms and project information sheets to every shoot. Note consent details in your process journal and catalog metadata. Review sensitive images with the people in them before showing them. Revisit consent when you plan a new use, such as moving from an exhibition to a book. And keep asking the ethical questions throughout the project, not only at the start.