When is the best time to approach a stock agency?

Here's a typical message I get on the subject of submitting images to a stock photo agency.

I probably shouldn't have submitted my photos to an agency until I get my business going, but I thought that would be a way to get my stuff looked while I was learning.

First, the stock photo agency of today is not like it was even just a few years ago. There are so many, that it becomes a catch-22: those that are easy to get into are probably taking everyone, and will not yield much money at all. The few remaining larger agencies with credibility are so hard to get into, that it's unlikely you'll get in unless and until you're ready. (You for them, and them for you.) But, knowing when that time is, well, that's the hard part. Thing is, you could well be ready, but if you don't go about it right, you still won't get in.

In my chapter on business marketing, http://www.danheller.com/biz-marketing, I cite several examples where I have submitted images to photo editors, art directors, and others of various positions for consideration, all of whom dismissed my work using phrases like, "does not suite our needs at this time." I even had an experience where a different representative from a major agency would contact me on a regular basis, telling me that my images were fantastic, and that I should submit them for consideration. Yet, each time I did, I'd get the same old form letter about how my images did not have enough commercial quality to meet their demanding clients.

In the chapter, I go into great detail on the "psychology of choosing," especially when it comes to evaluating photography by agencies or marketing directors. Most of the time, when you submit images, whoever looks at them is in the "browse" mindset, and do not nearly make the same decisions (thus, "value judgments") as they would if they were looking at your images as part of a search for a particular image to fill a specific client's need. It's easy to overlook images if you see them on a regular basis everyday. But, if you are lucky enough to have a specific image that happens to be the kind needed by one of the agency's clients, your lottery number might come up.

That's why image submission in a head-to-head market like we have today is futile, costly, and...no better than playing the lottery. Put another way, the exact same investment of time and money can be better spent building your business in other ways that will yield better results in the end.

The point is, agencies get thousands of photographers a week who send in ten- to hundreds-of-thousands of images, and it's too easy to overlook everyone. It's like what Groucho Marx said, "You wouldn't want to belong to a club that would have someone like you as a member."

And then there's the fact that getting into the agency may not be all that great, even if you do get in. You could be one of the thousands that make very little money, or no money at all. Some of you may think, "that's fine by me," but if it were just a matter of your submitting images now and then and waiting for pennies to trickle in, think again. You are going to invest a lot of time and resources to get them material on an ongoing basis, or they may drop you, even if you aren't making any money yet.

If you really want to get into an agency, you're going to have to do a lot of work that, hey, you might as well be doing for yourself first. And here's the major benefit of doing that: by building your own business first and demonstrating a proven track record of sales, it's much easier to establish credibility with a potential agency, since the "risk/reward" ratio has already been established: your images make money. Consider what would happen if your submission didn't include any images at all, but instead, a spreadsheet of sales figures from your own stock sales over the past three years. Who would turn that down? What's more, you have a pretty strong negotiating position to establish terms in your favor. For example, your offer letter can state, "I'm doing at least $30K a year on my own; if you want to represent my images, you need to guarantee me at least that much."

I have created a database of photo buyers from the Photographer's market. I am going to start marketing to them.

Oh yeah? How? :-) Again, the catch-22 applies: anyone that tries to go in through the front door along with thousands of others, isn't going to be savvy enough to stand out from the crowd. Agencies, marketing managers, and even photo editors have pre-written forms used solely for one purpose: to send to everyone that sends them unsolicited portfolios or other marketing materials. My marketing chapter gets into the details of that, too, so I won't regurgitate the points here. But, the point I'm trying to get you to see is that taking a one-step-at-a-time approach to this business is guaranteed to result in a lot of wasted time and resources.

Can you give me marketing tips? I am not asking for any of your secrets

ANYONE that claims to have secrets is full of !@#$%. Moreover, anyone that refuses to discuss something because they feel it's "secretive" is worse. There are no secrets at all to anything about photography or business--it's all a matter of how one puts together their own special skills, creative talents, and social/psycho aptitudes in a way that yields positive results. This isn't the same for any two people, hence, there are no "secrets." I open up my entire business methods, strategies, prices, and everything else in what I've written online, and if anyone wants to copy it, be my guest. They'll soon find that it can't be copied because the way tasks are executed has more to do with how I make decisions on an ongoing basis, not the script or template that seems to be laid out.

As long as photographers think it's all about taking good pictures and letting someone else do the sales, they will never leverage whatever they may have that really makes them valuable. In other words, they're all melting into the same thing. Hence, they're all equally likely to draw a winning lottery ticket. But, why play the lottery? Sure, your photography has to be good, but that's not saying much -- most people who _fail_ also are good photographers.

The business aspects of RAW vs. JPG mode

To shoot in RAW or JPG mode on your digital camera? Do you really get the extra, fine detail that 16-bit RAW mode purports to deliver, and that everyone is raving about? Or is it a case of the Emperor's New Clothes, and no one wants to say anything? Or, more precisely, do people even notice?

The answers to these questions may vary depending on what you want out of your images, but the business implications is the focus of this article. To get there, we need to start at the beginning.

For that, join me as we go into my way-back machine, for a small trip back about 25 years, at a time where music CDs were just beginning to hit the consumer market. The huge controversy of the time was that CDs were lower in audio quality than their vinyl record counterparts. Audiophiles were up in arms about the fact that analog sound was so much better than digital because it had a broader dynamic range--the high pitches were crisper, the bass notes didn't sound muddy, and the "continuous" tones were more life-like than the 1's and 0's of digital sound. Or, so they said.

The problem facing the consumer was that CDs were so much easier to deal with than vinyl records, and they didn't have those annoying skips, pops and scratches that come with everyday use. Yet, as audiophiles yelled louder, the general public showed more than indifference--they felt that CDs sounded not just better than vinyl records, but even closer to real life! The marketplace responded with their wallets; any difference in actual sound quality was imperceptible by the human ear. For the record companies, this was a windfall. The cost of manufacturing CDs was pennies on the dollar, compared to vinyl records. Plus, the public was willing to pay more than double the price for the CD version of an album. Since the music business is all about volume, nothing better could have happened to the music industry.

And today, it's déja vú all over again: the exact the same story unfolding as it did 25 years ago, but this time, the new music technology is MP3. In case you've been living in a cave (or working in your 1970s photography darkroom), MP3 is a form of compression for music that strips down the data to what many consider to be a bare minimum, all for the purpose of stuffing more songs onto smaller storage devices. This compression is causing even more limitations in dynamic tonal range, yet consumer are buying more and more music in this format. As before, few people can actually recognize the difference between the MP3 files and the original CDs from which they were copied, even though there is definitely a technical difference. I confess that I listen to my MP3 files on my fairly advanced stereo, and to me, Aerosmith and Bach sound just as good when I play them on my analog vinyl records. (Except for the skips, pops and scratches.)

And, as before, the business implications for MP3 are dramatic. With the exception of the brief time frame where the music industry stupidly failed to adopt the internet as a distribution channel--an error they have since remedied--record companies have once again struck gold, in that sales have been further fueled by an even easier and cheaper distribution channel, not to mention a broader, worldwide audience.

What can we learn from the music industry that we can map to the photography world? Two things, mainly: a reminder that "volume distribution" is the key to sales and profitability in the internet domain; and secondly, that volume requires a very efficient workflow of production. What does this have to do with RAW vs. JPG shooting modes in digital photography? Everything.

The first thing one might extrapolate from the music industry's lessons is that the "quality" of the product is only important if the audience can tell. Ironically, photography technology is moving in the other direction: we have higher-resolution cameras every year, including better dynamic range. Have we gone "far enough" where a profitable business can be attained using today's technology? Again, as postulated in the beginning of this article, "it depends." And that dependence gets into aspects of the economics of the photography industry that don't necessarily map over from the music industry directly.

Now, I know what you're thinking: a non-professional music-listener like me may not notice or care about losing dynamic range in sound, but professional photographers do care about losing dynamic range in images. Let's assume that's true for the sake of argument. So, there's no question that RAW better, right?

Not so quick, Bucko.

As a professional photographer myself, I really do need the most dynamic range I can get out of my camera, so the preservation of as much original data is critical. But, unlike sound editing, I can do a lot to an image in Photoshop that audio engineers simply can't do to music files. For all practical differences between RAW and JPG, you can still edit individual colors in either format. The question is to what degree of granularity is "enough?" For this, we need to examine whether that data is important enough to preserve, and at what cost.

It's important to recognize that JPG itself has 10 different levels of compression, each controlling how much data is "lost" when storing pixel data. When the compression level is set to 1, a lot of data is thrown out so as to end up with a very small file. (Thus, it's "compressed" a lot of pixels into a smaller space.) At the "10" setting, no compression is done at all; each pixel that the image has is written to the file. The way JPG does this results in a smaller file than its RAW counterpart, and this method can reduce image quality if done repeatedly on the same file. Therefore, the "workflow" for shooting JPG mode assumes that you only capture the initial image in JPG, and then immediately save the image in TIF (or other standard) format during the editing process. The important thing to recognize is that no data is "lost" on the initial image capture in JPG mode, which, in this respect, makes it roughly the same as RAW mode insofar as data loss.

At this point, there isn't much controversy--most (knowledgeable) people already agree up to here. However, this is where major differences exist, and where the controversy begins: RAW images have 16 bits of data with each pixel, whereas JPG images have 8 bits. There's also the fact that RAW mode doesn't apply any color profile or white balance setting at all, which allows you to change them after the fact in Photoshop. I hand-wave this "benefit" away, since most any professional photographer is skilled enough to know 99% of the time what color balance he should be using for any given shot. (And he should shoot a lot, so this isn't a problem.) As for color profile, I'll come back to that later.

The most important part of RAW mode, therefore, is its 16-bit pixels. At first blush, one would say that the 16-bit value is better because it's more precise--closer to the original color that was in the scene. In theory, yes, but in reality? Is it actually "better" data? And if so, can one actually perceive this difference? How significant is it? Or, could it be like the analog audio and high-resolution digital audio debate again, where there is technically a difference, but too insignificant to bother worrying about?

When you have more bits per pixel--that is, more data in the image--you you get what appears to be a smoother transition from one color to the next, thereby eliminating undesirable effects like banding. But, can you have so much data that no one can understand it, including your display device? Or, even your eyes? In a sense, our Emperor could possibly be wearing new clothes, and your camera may even be able to take a picture of it, but it may also be that it's physically impossible to see either the clothes, or the photo of the clothes, because neither the device nor your eyes have the capacity to see them.

And that's what the problem is with 16-bit RAW images. Nothing, except for some computer monitors, have the ability to render images that have that much data in them. Tests on the human eye have also demonstrated that the dynamic range of colors we see, while much larger than what can be captured with digital cameras, still lies within the range of colors that can be represented with 8 bits. While it would be great to actually capture color and light intensity that better approximates real life, there is still another major limitation: no printing system can produce prints from 16-bit images. Regardless of what you start with, you eventually have to convert an image to 8-bits anyway. This is somewhat analogous to the fact that most people can't perceive the difference between an analog recording, and a high-quality audio CD. The better data may be there, but the human ear (and speakers) are unable to discern it.

The first objection people raise to this is:

"but what about the banding of colors I see in my image when I bring it up in Photoshop? I can see the banding in 8-bit images, and less of it in my 16-bit RAW files."

And here's where the rubber meets the road. The answer is simply a matter of having more room to better approximate that data in the first place. Since the camera's sensor is not capable of capturing the actual colors from the real world, it has to approximate what that missing data might have been. This approximation just happens to reside in 16-bit pixel data rather than 8 bit data. Having a finer level of decimal point would be nice if the data weren't so inaccurate from the sensor in the first place. It's like having a calculator try to figure out the 10th decimal point of PI, even though the chip inside is incapable of doing that many decimal places. Sure, you can make a wider display that appears to have more decimal points, and you can guess as to what those added digits may be based on previous digits, but bad data is bad data, no matter how many decimal points you go out. In the imaging world, the additional data associated with 16-bit RAW images may give you a perception of accuracy, but it isn't actually more accurate. It's just fiddling with data intelligently.

People may then respond,

"perception or not, it's a better image. And if it was done by approximation, what's wrong with that?"

If you accept approximation in your pixel values, then the question becomes what tools are best at doing that kind of approximation? If the RAW image doesn't actually contain anymore useful data than the 8-bit data, the job for doing the extended math is open to more candidates than just the camera. What if you just need to be really good at Photoshop? Indeed, the camera's firmware isn't going to be as sophisticated with color approximation as Photoshop would be, even without having those extra bits.

In my own experiments, I have found that I can get an enormous amount of shadow and highlight detail from my 8-bit images using Photoshop techniques that many people may be familiar with, but aren't skilled at. I've also seen people rave about 16-bit RAW mode, only to find that they weren't that experienced with more sophisticated tools in Photoshop that could have yielded perfectly good images in 8-bit mode.

What RAW mode essentially becomes is a short-cut crutch for those who aren't as familiar with image editing as they could be. Personally, I have yet to find an image in both RAW and JPG format that I can't make look at least as good as the other, even if it means doing a little more hands-on work. But then again, I'm not really busting my rear-end to try.

Still, the reluctant skeptic may continue,

"but those bits are there, and the image looks better in 16 bits on my screen, and I like my results..."

Even if you don't buy into the argument that the rendering on the screen is merely a matter of really good image approximation, there's still the final matter of output. All printing devices, whether ink-jet or those that project light onto photographic paper, are limited to 8-bit color profiles. In the end, you're going to have to convert from the 16-bit image to an 8-bit image anyway, and once you do that conversion, you then must choose a color profile for the device that will render the image. If you don't know the details of Photoshop well enough to to do this, the "convenience" of not having to apply those skills in 16-bit mode is moot.

Making matters worse, I brought up the fact that printing devices require 8-bit images, which means we now have to revisit that whole discussion of color profiles. You know how paint companies have their own unique set of colors, and that they may not match those of other paint companies? The same is true of printing devices. But here, the industry did at least one thing right (or they tried to): to create a lowest common denominator color profile that all devices can be aware of, so as to permit a sufficient degree of interoperability between products like cameras and printers. This profile is called "sRGB," which stands for "small RGB", or "Red Green Blue."

One could conclude that shooting in sRGB colorspace is good enough, but here is where we want to swing back into the other direction of maximizing image data. Just because sRGB is common to all devices, it is still a lowest-common-denominator profile for 8-bit color profiles. Most printing devices have a broader dynamic range than sRGB, but they support sRGB for compatibility reasons. To access those extended colors for any given device, you need access to its color profile.

Professionals who use more advanced printers with wider color spaces (also called "color gamut"), often convert their images from their camera's color profile to that of the output device to be used, which they obtain either from the service provider doing the printing, or the manufacturer of the device (or from the paper manufacturer). Again, each is different; the Cymbolics Lightjet has a very narrow space in the yellow range (fewer shades of yellow) for some papers, and deeper reds in other papers. Whereas, Fuji printers are very wide in the Greens (making deep-forest images look very lifelike). This same effect was seen in photographic film back in the day.

So, here's where it all comes together to affect your business: as a photographer, your goal is to capture as much image data as possible while still maintaining an efficient workflow in your image management process. While 16-bit RAW files capture good quality data, its downsides introduce so much overhead in memory capacity, disk storage, and processing overhead, that the extremely minimal added color data simply isn't worthwhile. For most general photographers who wish to run a business, profit is all about volume, and one cannot produce enough product if time and resources are spent dealing with 16-bit RAW images. It's like having to deal with the skips, pops and scratches of vinyl records, even though the analog music is "technically" better.

An obvious exception to that axiom is when the actual image itself is part of a mission-critical deliverable to a client. Specialized photographers, such as assignment photographers shooting products in the studio for ad agencies are good examples. They don't shoot nearly enough images in the course of the day for the overhead of RAW images to negatively impact workflow. Similarly, food photographers and fashion/glamor photographers often need to do precise color-matching of people or products, and RAW image data can be easier to work with for things like that because there are extended tools available for only those formats. But, such examples are rare in the broader photography industry, where the vast majority are either freelance, or work for clients that would never notice the difference between images that were initially shot in either RAW or JPG mode.

Still, the most ardent skeptic of this discussion may still say,

"16-bits is still better than 8, and since I know I'm not losing any data, I'm sticking with it."

Then, at least consider this: the biggest downside is RAW mode is that it is proprietary. It's not just among each camera manufacturer, but from each iteration of your own camera to the next. Yes, the very RAW data you shoot today is not guaranteed to be readable at any given point in the future, even by your own camera if you ever upgrade it (or buy a new model). If you archive your images in RAW mode, they may be readable for a while, but one day, they will suddenly be unreadable. Should you ever need to recover old images from backup disks, they may be totally inaccessible.

This leaves 8-bit images perfectly acceptable, not to mention vastly easier to deal with format. It's compatible with everything, it can be used in many contexts, and is easily portable. Using JPG makes life easier in the same way that music was easier to deal with going from vinyl to CDs, and then again to MP3.

The business issues concerning RAW vs. JPG is one thing, but once you choose to work with JPG, we need to revisit the color profile issue again. When you shoot in JPG mode, you need to select a color profile, or the data may not make sense to any device. While most digital cameras won't give you an option (they force you into sRGB), professional level cameras (like Canon) offer the option of shooting in a variety of them. Among that set is the "Adobe 1998" color profile, which contains the largest range of colors that can be mathematically expressed in 8 bits. Using this profile, you can with it in using Photoshop without having to do conversions. Later, when you want to make a print, you convert copies of those images to new images that have color spaces defined by whatever device (or paper) you're going to print on. (Or, use sRGB if you don't have the device's profile).

I should note that shooting in JPG mode is different than archiving images in JPG format. TIF is a much better format for image archival, and because it is standard, it's guaranteed to be around for a long time. There are other formats becoming available, such as PNG, and there may be a time when cameras shoot in PNG mode, making this entire controversy (and this article) entirely moot.

If the issue of RAW vs. JPG is so academic, why the big fuss? This is largely because of two major cultural dispositions of photographers and the technology industry: one half of the group tends to be intensely focused on minute technical details, which is an important factor in the development phase of any technology. External forces are necessary to keep a legitimate and forceful "push" on camera makers to continue to improve their products. However, the translation of the message they send to the rest of the world taps into the other half of the photography world: there are those who don't understand what they're told, and mis-interpret (or misapply) the message they hear. These are often pro photographers and the media, both of whom act as amplifiers of the mis-translated message. This amplification shapes the message that camera companys' marketing departments hone in on, thus completing the circular feedback mechanism. The camera manufacturers get into the mode of developing technologies that their marketing departments think the customers want, even though this "need" was really a mis-impression from information that came to them through a media source that mis-applied a technical review from a technophile with good intentions, but a misguided sense of real-world applications.

The "fuss" comes into play when someone in the crowd (like me) actually takes a more pragmatic view of the emperor and proclaims that he is not, in fact, wearing any clothes--at least none that are visible to the naked eye.

In summary, "yes!" the techies are right in the most academic sense, that 16-bit images are "better" than 8-bit images. But the real world makes their observations far less beneficial than the work and other problems necessary to bother with RAW mode in the first place. RAW is a very importantly aspect to photography that must exist if for no other reason than to keep track of what cameras do internally, but its practical use to 99% of today's real-world photographers is close to nil.

How many images before you finally turn a profit?

When photographers consider setting up their businesses online, the natural curiosity is wondering how many images do they need before the sales start trickling in. Then they consider their particular images, and wonder what the size of the market is (hence, the "opportunity" to make money). And, finally, if they believe they have "enough" images, and the market opportunity exists, what's the best way to market those images to the target buyer.

All this is demonstrated by an email I got from someone, which is almost identical to those I get on a fairly regular basis:

1) What gross sales and net revenues are possible from a well run, part-time web based stock photo business with a single photographer supplying images?

2) How many images do you feel are the minimum to make available in order to be taken seriously and make a profit?

3) What is your most effective marketing technique and why?

4)I'm considering focusing the scope of my stock offerings to very local images- Bucks County PA, because that's where I live and I've been unable to find much available stock of the area. I've been accumulating local publications that I think might be potential customers. Can you offer some advice on how to best approach them/market to them?

All of these questions are good, but they are all based on the faulty premise that a photo business's success is based primarily on the photos, either the quantity of them, or their quality.

What makes a photo business successful is more based on other factors. For example, your main subject matter can be very specific, or very broad. How well you do will be contingent on how well you know the business of the industry you're shooting for, or how well you know "business issues" in general.

If you shoot specific subjects, like horses, or fashion, or food, or sports, or Bucks County, Pennsylvania, your revenue is going to be based in large part by how well positioned you are with the media companies that buy such specialized images within any of these industries. Those who are well-connected, know what the market is like, and how those businesses are run. They also understand how photography fits into those business models, and can package a marketing/sales plan that is "industry-friendly." If you have no such contacts, or don't know the business-end of that target industry, your likelihood of success will be pretty close to nil, regardless of the quantity or quality of your images. It is highly unlikely that those who need specialized images of a niche area browse the web for stock images from random photographers' websites. It may happen, but it won't amount to much sales.

On the other extreme, if you shoot really mediocre pictures of everyday things, you could hypothetically build a very profitable business by pricing them for a few dollars each and bundling hundreds or thousands of them together in royalty-free compilations for several hundred dollars. Here, you don't even need to target media companies--the general public is good enough.

Let's say you have 5000 images that you sell for $200, and you have no strings attached to the use of those images: no additional royalties, and no limitations on use. If you manage to sell 1000 of these compilations over the course of a year, that's $200,000. That ain't bad. But it also isn't that easy, despite how simply I described it, because setting up a business infrastructure to do this sort of thing requires some degree of business sense. While not difficult, it isn't something you just throw together in your spare time unless you've had past experience doing it.

Above, I illustrated two simple business models of many. Regardless of which model you choose, your sales, marketing and distribution methods must dovetail with the type of images you shoot and the target market/buyer, or you'll fail miserably. That is, you aren't likely to combine models that don't mix. For example, if you shoot fashion, providing hundreds of images on a royalty-free basis may get you a few buyers a year, simply out of random luck. But the market for those types of images is so small, that it's unlikely going to ever amount to a profitable business. Those who really acquire images like that, do so from well-known photographers (where the pictures are of well-known models). Conversely, trying to sell rights-managed images, where each image is priced for several hundred dollars is likely to only work well if the images are hard to come by, or your supply of really high quality images is so vast, that your lucky number just happens to come up more often. (That'd be like buying thousands of lottery tickets, and betting on the fact that your luck will outweigh the odds against you.) But, this isn't necessarily a good business model if your images are of common things found copiously on the net already.

Thus, an open-ended question like, "what kind of revenues are possible?", can't be answered without more information about who you are your past experiences, the type of images, the target market, the distribution method, and so on.

I can say that anyone with business sense knows not to ask such questions, because they would know business issues well enough to know such answers aren't that simple. Which implies that those who do ask, probably aren't going to be making huge sums of money anytime soon because they simply lack business sense.

Nevertheless, I'll bet you're still looking at the above two examples and thinking, "I'll take my shot at the $200 per bundle" business model. Seems simple enough, right? But then my favorite quote comes in: "If it were that easy, anyone could do it." The reality is that achieving such a thing is more and more difficult these days because so many people are trying. In fact, the market is so saturated with images, that getting noticed is just darn near impossible.

This brings in other business skills like marketing and distribution. For example, do you invest in online advertising (such as Google and yahoo ads)? When you look into that, you also see that everyone's doing that, too, so the cost of advertising may be a lot more than you thought, which has a direct effect on the traffic your site gets, digging directly into your bottom line. If you photograph a narrow range of subjects, then your audience will be smaller, and with it, lower revenues. If you're well-known in that industry, this could work very well to your favor, but that brings us full circle to having good business knowledge of your main area of photography.

This further demonstrates how all these business issues tie so closely together, which points back to what I said in the beginning: selling images in any context is less about photography than it is about having "business sense," and knowing how to apply it to your product. If you think about the millions of photo-enthusiasts like you who browse photo discussion forums seeking formulas for making money on the net, then you should realize that if any advice that people were giving actually worked, these millions of people would be making lots of money. Because they aren't, one can only surmise that there are no such formulas or simplistic bits of advice.

Success in the photo business is more about how well you know how to run a business in general. Accordingly, if you think of your photographs as widgets, not works of art, you're well on your way to better business thinking.

Further reading is found here.

Photographing people in "Compromising" situations without model releases

I got an interesting set of questions in email from someone that was wondering whether it's illegal to post a photo of someone in a "compromising" manner on a website. This may include a candid photo of someone, or a picture taken with the intent of "revenge" (like an ex-girlfriend). To address this, I'll address the sequence of questions as they came up:

On Mar 12, 4:49pm, minekaze@[...].com wrote:

My question has to do with freedom of expression on the Internet regarding "compromising" photos of people without model releases

All of these issues revolve around the law based on the "right of privacy" by individuals. The section of the law that applies here states:

Section 652D
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.

As a review note, a "model release" is required if the use of a photo would otherwise make the photographer liable for violating the above statute (or a similar clause regarding use of a photo for use in commerce, which isn't discussed in this article).

In the text above, "giving publicity" can include taking a picture of someone and posting it on a website. For the subject of the photo to legitimately object to the image, it has to meet both (a) and (b). As you can imagine, the first part is a very high bar indeed. When the law says, "highly offensive," one can imagine just how offensive that would be for a judge (or jury) to agree that it's awful, especially when you live in the kind of society we do today. When the general public has been continually desensitized to what might have been 'offensive' a decade ago due to what is broadcast today on daytime television, or even the news, "highly offensive" probably won't include anything you shoot in public spaces. (Of course, if it's in a private place, then other provisions of the privacy law apply, which is beyond the scope of this article.)

If the person really is doing something highly offensive in a public space, and you have a photo of it, the next problem facing the subject for claiming a violation of privacy is part (b). That is, it's probably of legitimate concern to the public, as it may be something that people should be aware of, if for no other reason than to prosecute the person for doing something illegal. In other words, anything that would be considered "highly offensive" in public is likely to be something illegal.

Of course, my statement is somewhat of a leap. In fact, all of this is purely hypothetical, since we don't have a specific example to cite. My discussion here is more intended to speak the general photographer who may be concerned about shooting a candid photo of someone in public that's doing something silly, funny, or even stupid, and posting it on his website. A common example would be a picture of someone picking his nose, yawning in a funny way, sleeping on a bench, or even urinating on the street. Yes, even that isn't considered "highly offensive." And, since the person is doing it in public, there's also the assumption of "fair use," where the person is implicitly waiving his right to privacy.

Another application of this sort of thing is that of "public figures." Here, there is a perception that their rights to privacy are different from ordinary citizens. That isn't the case at all. However, the perception that the law is applied differently to politicians, movie stars and other celebrities is born more out of the observation that the paparazzi don't go after private citizens--only celebrities. The simple reason for this is not because regular citizens have more protection, it's because there's no money in photographing them. Paparazzi make their money by selling pictures of high-profile people to magazines and newspapers that pay a lot for those pictures because, sadly, the public will buy papers that have such photos.

Oddly, because of the celebrity status of such people, the question then becomes whether it's a matter of "legitimate concern to the public." Sure, one can certainly argue that a compromising photo of a movie star isn't really something that public should be "concerned" about, but this was the very defense used when crash photos of Princess Diana were published. Offensive, yes, but of concern to the public? Many people argued it was.

Regardless of what your values are and how you weigh in on this, there is a more important issue at hand: the entire premise of a free press relies on its ability to report on the actions of citizens, whether public servants, celebrities or private individuals. Strictly speaking, this foundation must be preserved for the system to work; if it were applied differently to public figures and private individuals, we would have a bigger set of problems to deal with. Yet, as we all know, it's a double-edged sword, and many people share a sentiment that what once constituted "the press" and "newsworthiness" has gone awry. It is to be noted, however, that this feeling has always been part of our society. Even during the founding of the country, when Ben Franklin's personal affairs were written about scathingly in Washington "tabloids" (of the time), even he defended the need to keep such acts legal. Once you introduce "exceptions" to the rule, the system breaks down.

When paparazzi publish photos of celebrities, the subjects of those photos can (and usually do) file a lawsuit because their careers are often at stake. When they win the suits, they often do so not because of the photo, but what is said about them in the accompanying article. Here, it is usually something slanderously untrue, and if it can be demonstrated that the untruths caused "harm"--usually of a financial nature--then they often win. One can also sue if paparazzi (or anyone else) violates other laws, such as illegal entry, or using a telephoto lens to photograph people in their private residences. This is the other "invasion of privacy" matter noted before.

Other related notes:

If a guy posts nude pictures of his ex-girlfriend on the Internet because he's mad at her for cheating on him or whatever, would she have much basis to win a legal case against him?

If he photographed her in a private setting, such that she felt she was not giving up her privacy from public view at the time, she can sue the pants off of him. If the photos were taken in Central Park during a political protest, where she was flashing her breasts, she doesn't have a chance of winning. Of course, all this assumes the photos were published in a non-commercial context, like on a postcard, in a poster, or on video. This brings up a related question:

What about girls filmed on "Girls Gone Wild..."

This gets into commerce, and in those cases, every one of those girls signed a model release. Yes, it's true. Such people do exist.

or the everyday people whose images you see posted on amateur satire or porn sites

"Satire" is a protected form of speech, but porn is an entirely different category all together. There are various decency laws and other things that make it complicated, and beyond the scope of this discussion. And yes, uses of images that are classified as porn do require a model release (and, in fact, a more stringent one). Are there violators out there? You bet. Could the subjects sue? Absolutely. Do they sue? Rarely.

In closing, these questions are good, but they are less about photography than they are about the First Amendment. And I realize that's a tall order: people go to college for years and years, spend their entire careers being lawyers, and even become judges, yet still disagree with one another on what constitutes a "legal" use of an image, and what doesn't. Even our current supreme court has nine people who are vehemently divided on these (and many other) First Amendment topics.

My advice to the common photographer: don't worry. Shoot away. If you're a pro, then you need to worry only if you are going to sell (license) the photo for publication. And then, you only need to worry if the use of the photo is "editorial" vs. "commercial." Commercial uses often require a release, and privacy issues usually aren't at issue. But, again, this is beyond the scope of this discussion.