Safe and sound

From a shoot with S this summer. She has graciously given me permission to share this and other images from her shoot.

There’s been a bit of a controversy in the local boudoir scene as one local photographer has been called out for sharing images in her Facebook site without permission.

Apparently, the photographer has sent notes to people who have asked her about this, saying “[This]…is a ladies only, private not public page. Because of this and copyrights etc. I don't have model releases on sessions taken at my location. Unless its to be posted outside of the group.”

I am not here to throw other people under the bus, but I am here to say this is wrong, both morally and legally. Here’s what the law has to say, as taken from the Justice Law website:

Publication, etc., of an intimate image without consent

162.1 (1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty

(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) of an offence punishable on summary conviction.

Definition of intimate image

(2) In this section, intimate image means a visual recording of a person made by any means including a photographic, film or video recording,

(a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;

(b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and

(c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.

If anyone ever tells you that it is their legal right to share an intimate image of you, even privately, they either don’t know what they’re talking about, or they’re lying to you. The criminal code does give me the right to take an image in public and publish it, but boudoir sessions are, by their very definition, not generally public facing.

Now, there is one line in the above that shows at least a passing understanding of the law. According to Ambient Light, one of the most popular websites about the law and photography in Canada, you are within your right to take pictures of whatever you like on your own property.

The issue becomes dicey when you decide to share that image. While it is within the rights of the photographer to share the image, it is also within the right of the person in the image to sue if the image is unflattering, or misleading.

It becomes even dicier when that image is used in a commercial manner, which is when an image is used to sell or promote a product or service or otherwise support a business in making money. If I take a picture of someone drinking a bottle of Jones Soda and sell it to that company to use in their advertising? That’s a commercial use of that image. If I Post an image to a website to promote myself as a photographer, even if it is in a private group, definitely toes the line of being commercial.

If you’ve ever had boudoir photography done by someone and were shocked to discover they had those images posted on their website? You are within your rights to ask them to remove them.

With all that said, here’s the way it works here. Many, if not most of the images I show on the website and social media have been shot for promotional purposes. Sometimes I shoot with people who are aspiring models, but many of the people I work with are just regular women who are looking for some great images. These are typically free shoots, where we exchange our time and skills to create images that both parties can use however they like, as long as it is not in a way that is in any way negative to either the photographer or the model.

But sometimes, there are images from a client shoot that are amazing. So what happens then? Well, I’ll talk with the client and say “these images are amazing. I was hoping to show them to other potential clients. I am a photographer, and part of being able to find new clients is the ability to show off my previous work.

“At the same time I understand that these images can be deeply personal and intimate, and you may not wish to show them publicly.  Right now, all the images are only available to you. I WILL NOT SHARE any of these images without permission. But, since I am sending this to you, you have already agreed—in principle, but not in fact—to allow me to share some or all of your images. 

“There are three ways these images can be shown: Publically (website, social media, etc.), semi-privately (in a password protected gallery on my website) or privately (Zoom or in-person consult with a potential client, sample album to display at wedding shows, etc.)

“You might be willing to share images that don’t include your face or any identifiable features (like tattooes). Or you might only want to share images that don’t include nudity. Or you might want to only allow certain images to be shared. This is up to you.”

For instance, this is one of my favouritist shots ever, taken with a real client on a Rocky Mountain Experience:

This client didn’t want any shots that would be recognizable as her, so I asked for permission to share this and a couple other shots that didn’t include her face, which she agreed to.

Meanwhile, this summer, I had another epic shoot, down by the river at Pipestone. The client wore a hot pink dress that looked incredible against the deep blue sky. I asked her if it would be possible to share some of those images, and she said no.

And so those images aren’t anywhere to be found online. They don’t show up in my new sample album (which looks pretty amazing, BTW). You’ll have to take my work on the fact that the shoot was flaming hot and some of the most epic images ever. Am I sad that I can’t share them? A little, but it is far, far more important that those bonds of trust between me and that client be protected.

In the last few months, I also had one of the people that I took pictures of contact me and say she has a new boyfriend, and, while he is okay with her sharing her images online, his family isn’t and so, in order to smooth relations with her potential in-laws, could I pull down the images I shot of her.

Here’s the deal: she had agreed to let me use those images. She signed a contract saying I could use those images, I have every right to use those images. What did I do?

I took down the images. That very day. Why? Because while those images were amazing and she was incredible, she is far more important to me than the images I took of her. Not because we have some sort of deep personal connection (her note asking if I could take down the images was the first time I’ve heard from her since I took the pictures a couple years back), but because she is a person with her own struggles and own life. If the images I have taken are causing her grief, there is no question what needs to happen. And yes, I’d love to live in a world where she can be loved and appreciated, even if she has some sexy images of herself on the internet. But, life.

All this is to say, if you want to do a Beyond Boudoir shoot, your images are safe with me. You and only you are the arbiter of if those images are shared: publicly, privately or by morse code.