I took a picture of what appeared to be 2 siblings just goofing off on a park bench at a farmers market in front of the restaurant my wife and I were at. Would the subjects be considered recognizable? and would i be required to get a release to use the picture in the future?
One of the classic cases referenced in all of the photojournalism textbooks is Graham vs. Daily Times-Democrat from 1964. Ms. Graham was exiting a funhouse at a county fair when a photographer from the local newspaper snapped her photo just as she passed over a grate that blew up her dress and exposed her underwear. The paper published the photo with the caption "All's fair in Fair Fun." Even though her face was not visible in the photo, Graham asserted that she was identifiable due to two of her children also appearing next to her. She sued the paper and won damages. The jury in the case found that the photo, though truthful and captured in public, was embarrassing without containing any information of legitimate concern to the public. Had the photo also communicated something the jury found to be of legitimate concern to the public, she would not have been awarded damages.
The State Supreme Court stated in their decision of the appeal:
There is a fertile medium in this field of torts for the production of conflicts between the right of the individual to be let alone, and the right of the public to know--the latter concept being crystalized in our age old concept of freedom of speech and of the press.
For a more complete look at what one can and can not do with photos taken in public places in the U.S., please see: A photo of my wife has been used in a website article without her permission. What can we do?
I can not speak to the legality of it but i can say from experience that just because a face is not in the photo does not mean the person is not recognizable.
I posted a photo on my smugmug page that was of two nudes in embrace inside the grand canyon, shot from a distance, meaning they only filled a portion of the frame as the surrounding red rock canyon was as much the subject matter as the nudes, their faces were not visible. After only a few days i received a call from the two subjects that asked if had posted the photo, that a colleague of theirs had called them and had recognized there nude body's.
I had not asked them if i could post it because i though there was no way someone could identify them by just their body's, plus it was a lith print, very soft, no tattoo's or scars or other identifiable features other than body shape or muscle structure.