Parshas Yisro 5786 – Intriguing Questions & Answers
May One Photograph and Publicize a Person’s Picture Without His Consent?
Q: An incident occurred with a chosson who hired a photographer to take pictures at his wedding. Sometime later, when he happened to visit the photographer’s shop, he noticed that a large portrait of himself — dressed as a chosson — was prominently displayed at the entrance for all to see. He strongly protested, stating that he did not consent to having his image publicly displayed. The photographer responded that the photograph is his personal property, and he is entitled to use it as he wishes. Is the photographer correct, or does a person have the right to prevent his image from being publicized without his permission?
A: My friend, HaGaon Rav Moshe Fried shlit”a, discusses this matter in his sefer Shu”t VaYishma Moshe. There he relates that he asked Maran HaGaon Rav Chaim Kanievsky zt”l about this issue. Rav Chaim responded that it was well known that the Chazon Ish zt”l would object to being photographed, and likewise his father, the Steipler Gaon zt”l, would strongly protest and sharply rebuke those who photographed him. Nevertheless, the general public did not treat this stringently, and the common practice became to photograph a person even without his consent. Even so, it is certainly not proper to make use of a person’s image against his will.
HaGaon Rav Yitzchak Zilberstein shlit”a sent me what he wrote on this very topic. He cites that this question was already posed by Rav Shlomo Sobol zt”l to the Rav of Yerushalayim, HaGaon Rav Yosef Chaim Sonnenfeld zt”l. The primary argument to forbid was based on the principle that one may not conduct business with another person’s property without permission — “ein adam oseh sechora b’paraso shel chaveiro.” Accordingly, the photographer should not be able to profit from another person’s likeness without his consent. Rav Sonnenfeld responded that this is not comparable to using someone else’s property. Rather, the photograph is the handiwork of the photographer. Just as if one paints a portrait of another person, it would not occur to us that the subject has any legal claim over the painting, so too regarding a photograph: the photographed individual has no ownership claim over the image. The picture is the property of the photographer.
A Claim of Mistaken Hiring (mekach ta’us)
Nevertheless, this question requires further analysis. Since the chosson hired the photographer specifically to photograph his wedding, he could argue that he certainly did not hire him with the understanding that the photographer would cause him embarrassment, distress, or damage by publicly displaying the images. It is then possible that he could even claim mekach ta’us — a mistaken agreement — and demand a refund of the photographer’s fee. (However, in such a case, the photographer could demand the return of all the photographs, leaving the chosson without any wedding pictures at all.)
In any event, such behavior certainly violates the mitzvah of “V’ahavta l’rei’acha kamocha.” Chazal taught: “That which is hateful to you, do not do to your fellow.” Accordingly, it is improper to earn a livelihood through something that causes another person pain or embarrassment. Even if beis din cannot compel payment or liability, one is certainly accountable under b’dinei shamayim, and his loss outweighs any gain. Some dayanim maintain that it is forbidden according to strict halachah to publicize a person’s photograph against his will. Since doing so causes him distress, it may fall under the prohibition of ona’ah (causing pain or harm to another). According to this view, a person retains a form of ownership over his image to the extent that he may prevent others from publicizing it, and he may object to having his likeness displayed publicly without his consent.
In practice, while there may be grounds to argue that the photographer technically owns the photograph, it is certainly improper — and according to some Poskim, forbidden — to display or profit from a person’s image against his wishes. Therefore, one should refrain from doing so unless explicit permission is granted.
May a Husband Leave at Night to Daven Ma’ariv and Leave His Wife at Home with His Brother?
Q: I have frequently been asked regarding a very common situation: A husband has a brother staying in his home as a guest, and he wishes to leave the house to daven Ma’ariv. May he go out to daven while his wife remains at home with his brother — her brother-in-law — when there is no other shomer present? Similarly, this often occurs when a guest is staying in someone’s home and sleeps later in the morning than the homeowner. Is there any problem for the homeowner to leave early for Shacharis if doing so will result in his wife being secluded with the guest without supervision?
A: In order to rule on this common case, several points must first be clarified. We will briefly summarize the relevant considerations.
1. The concern of libo gas bah (familiarity)
First, it must be emphasized that a man is considered “libo gas bah” with his sister-in-law. Regarding the laws of yichud, we find that when such familiarity exists, the usual leniency of “baalah ba’ir” (the husband being in town) does not apply. This is stated in the Gemara (Kiddushin 81a) and ruled in Shulchan Aruch, Even HaEzer 22:8. Accordingly, if a husband leaves his home and leaves his brother (or another guest with similar familiarity) alone with his wife, relying merely on the fact that he remains in the city, this does not remove the prohibition. Therefore, if they were to remain together for the amount of time that constitutes yichud — between approximately a minute and a half to five minutes — this would constitute yichud. Therefore, one must avoid such situations.
2. An open door (pesach pasuach)
However, if it is possible to leave the door open to a public domain (pesach pasuach l’rshus harabim), there is room to be lenient even when libo gas bah, since the poskim debate this point. In a case of need, one may certainly rely on the lenient opinions. However, this leniency applies only during hours when people are normally awake and passing by — from the morning until late at night.
3. Yotzei v’nichnas — going in and out
There is further room to consider leniency if the husband may return at any moment. When someone may enter unexpectedly at any time, this is considered yotzei v’nichnas (coming and going). We find a similar principle in Avodah Zarah 60a and in Yoreh Deah 129 regarding yayin nesech, where such unpredictability serves as a deterrent. Some Poskim therefore permit leaving a brother or similar guest — even where libo gas bah applies — if the husband is expected to return shortly and unpredictably. Practically, this would generally mean an absence shorter than the time it takes to walk a mil (approximately 18 minutes), which may still qualify as yotzei v’nichnas. Nevertheless, not all authorities rely on this leniency, especially where familiarity exists.
4. Providing access to others (keys or codes)
Preferably, when dealing with a guest for whom libo gas bah applies, one should arrange that three neighbors or friends have keys or an access code and that they should enter the home at any time. This effectively prevents yichud concerns. If only one person has a key, one may rely on that as well, and it should be made known to those in the house that this person may enter at any time.
5. When there is no special familiarity
If the guest is not considered libo gas bah, then we may rely on the standard leniency of “baalah ba’ir,” and there is no concern of yichud. In such a case, the husband may leave to go to shul even if the guest remains alone with his wife. However, it should be noted that even in situations where yichud is technically permitted, one must always exercise prudence and avoid circumstances that could lead, c”v, to inappropriate closeness or impropriety. As always, “chacham einav be’rosho — a wise person keeps his eyes in his head.”
Enjoying the Wedding Meal While the Chosson Is Still in the Yichud Room
Q: A very common situation arises wherein guests come to a wedding to wish mazal tov to the ba’alei simchah, but they are unable to remain for a long time. Frequently, however, they arrive while the chosson is still in the cheder yichud. The question that arises is whether they may partake of the food and drink that is served even though they have not yet been mesameach the chosson. After all, Chazal state (Berachos 6b): “Whoever benefits from the meal of a chosson and does not gladden him transgresses the ‘five voices.’” This ruling is cited as halachah by the Magen Avraham (O.C. 156).
A: The Ezer Mikodesh (Even HaEzer 65) writes that if one offers the chosson food or drink, says something humorous that cheers him, praises the kallah, or recites a blessing under the chuppah, he thereby fulfills the mitzvah of gladdening the chosson. Rav Akiva Eiger (Berachos 6b) explains that the form of simchas chosson depends on the individual groom: If he is a ben Torah, one should gladden him with words of Torah, for that is his primary joy; if he is more simple, words of aggadah are appropriate; and for someone even more simple, pleasant conversation or jokes will suffice. Similarly, if an important or distinguished person attends the chassunah, he fulfills the mitzvah through the honor and joy the chosson feels from his presence.
It would seem, therefore, that even simply approaching the chosson and saying “mazal tov” already fulfills the mitzvah of simchas chosson. One may wonder: why did Chazal specify that one who benefits from the meal of the chosson without gladdening him transgresses, and not say the same regarding the kallah’s meal, since the posuk states: “Kol sasson v’kol simchah, kol chosson v’kol kallah…”?
The Acharonim suggest several explanations to justify the widespread custom of eating at the wedding meal even when one has not directly been mesameach the chosson. Some say that the prohibition applies only when one benefits from the “meal of the chosson.” For this reason, in many places the kallah’s side pays for the meal. If the chosson himself did not pay — or where both sets of parents jointly cover the expenses, as is common today — it may not technically be classified as “the meal of the chosson” (see Rosh Pinah EH 65; Shu”t Siach Yitzchak; Ta’amei HaMinhagim; Piskei Teshuvos 194, pg. 22 in the name of the Sefas Emes).
Maran Rav Yosef Shalom Elyashiv zt”l (cited in Yismach Lev) held that even if a guest leaves before the chosson exits the yichud room, nevertheless, since the chosson will hear that many people attended — and presumably will know that this guest came to participate in his simchah — that itself gladdens him, and this is sufficient.
Some suggest (Shu”t Meishiv Nevonavim, Klilas Chossonim) that nowadays many people attend weddings primarily for the mechutanim or families, since they do not know the chosson personally, and sometimes they do not even greet him. Since they are not attending for the sake of the chosson, they would not fall under the prohibition of “one who benefits from the chosson’s meal.” However, it seems difficult to rely on this logic without clear proof, as it appears to contradict the straightforward implication of the Gemara. This is especially true when we consider the approach cited in the name of Rav Elchanan Wasserman Hy”d, that once one benefits from the meal, he becomes obligated in simcha, and must therefore gladden the chosson.
Accordingly, it would seem that anyone who approaches the chosson and offers a warm and heartfelt mazal tov fulfills the mitzvah of simchas chosson — even if he does not know him personally.