Photography and the Law
Written by: steve
By Steve Russell
In December I was told by a mall cop that photography wasn’t allowed in the mall. Not five feet away, at least three different people were taking pictures with their cell phones. When I asked about the other people, the mental-heavyweight mall cop informed me that it was okay to take a photo with your cell phone but not with a real camera. Okay, I admit, I laughed out loud which didn’t make him very happy. Then just for grins, I took out my iPhone 4 and started taking pictures which prompted him to tell me I had to leave the mall immediately. I could have escalated this little encounter but I had the images I wanted and was getting ready to leave anyway. I did point out to the guy that I was getting ready to leave before he arrived and wasn’t leaving because of anything he said.
This incident along with some comments made in replies to some of the articles here at BMP prompted me to write this article discussing photographers’ rights. Note this is a United States centric article but my research seems to indicate that this is a much bigger problem in the UK and the rest of Europe.
Let me be very clear on this – I am not a lawyer. This article is in no way intended to be construed as legal advice.
Okay, now that I have that out of the way, I do recommend that you visit the web site that belongs to Bert Krages, who is an attorney, and download a copy of his flyer entitled The Photographer’s Right. You may also be interested in Andrew Kantor’s USA Today article.
In general there are some things a photographer should know and keep in mind. This may become very important if you’re interested in or engaging in street photography.
1. Anyone in a public place can take pictures of anything they want. People, animals, places and things. Public places include parks, sidewalks, etc. What about shopping malls, movie theaters, etc.? Here is where it gets kind of gray. A shopping mall is technically private property, however, the mall owners have made it a public place by opening the doors to anyone that wants to enter.
2. If you are on public property, you can take pictures of private property. If you’re walking down the sidewalk and decide to take a photo of someone’s home, you may do so even if they tell you that you can’t. If it’s a great big guy with a loaded shotgun, move on and don’t take the photo.
3. If you are on private property and are asked not to take pictures, you are legally obligated to honor that request. This includes posted signs that say no photos or displays the international symbol representing “no cameras.”
4. Sensitive government buildings (military bases, nuclear facilities) can prohibit photography if it is deemed a threat to national security.
5. If they are in public, people can be photographed, even without their consent unless they have secluded themselves and can expect a reasonable degree of privacy. This includes restrooms, locker rooms, people entering their PIN to purchase something, etc.
6. The following can almost always be photographed from public places, regardless of public opinion:
a. accident & fire scenes, criminal activities although you might want to be very careful doing this
b. bridges & other infrastructure, transportation facilities (i.e. airports, subways, train stations, etc.)
c. industrial facilities, Superfund sites
d. public utilities, residential & commercial buildings
e. children, celebrities, law enforcement officers
f. people at the beach
7. Although “security” (especially in this post 9/11 world) is often given as the reason somebody doesn’t want you to take photos, it’s rarely valid. Taking a photo of a publicly visible subject does not constitute terrorism, nor does it infringe on a company’s trade secrets.
8. If you are challenged, you do not have to explain why you are taking pictures, nor to you have to disclose your identity (except in some cases when questioned by a law enforcement officer.) However, in my mind, if you’re doing nothing wrong, why not patiently explain to the cretin harassing you what you’re doing. You might even ask them if you can take their photo and tell them that you’ll be sending the photo with an explanation to the local new channel so he can be on TV.
9. Private parties have very limited rights to detain you against your will, and can be subject to legal action if they harass you.
10. If someone tries to confiscate your camera and/or film, you don’t have to give it to them. If they take it by force or threaten you, they can be liable for things like theft and coercion.
So what should you do if you find yourself being confronted about your photographic activities?
1. Don’t cop an attitude. Doing this will only create more problems for you.
2. If appropriate, patiently explain what you’re actually doing and why.
3. If all else fails, show them a copy of The Photographer’s Right I mentioned at the beginning of the article.
4. Take your gear and leave. It is really doubtful that the photo you’re taking is worth the hassle and aggravation.
That said, if it’s a mall cop, I’ll probably stand my ground and very clearly point out items 8, 9 & 10 above.
Ask yourself, do you really need to take the photo or do you just want to. If you really need to take the photo, make some advance preparations if at all possible. The photo above was clearly taken in a grocery store and they have a very valid reason for not wanting people to take photos in the store. They don’t want their competitors taking pictures to record their merchandizing activities in an attempt to gain an unfair competitive advantage. Cell phones aside, if you walk into a business carrying a fancy DSLR with a big flash mounted on top and sporting a fancy lens, you are going to be asked to not take photos and/or to leave.
Before I took the photo of the butcher, I went into the store, leaving my camera in the car, and told the manager that I was taking an environmental portrait photography class and needed photos of people in their work environment. I clearly explained what I was going to use them for and that I had no intention of ever selling them. The manager gave me the permission I had requested.
In most cases a little bit of common sense will go a long way. Unfortunately, there are some people on either side of the camera that aren’t overly blessed with common sense.
I purposely didn’t discuss model release forms and commercial use of images. I will discuss that very important subject in a subsequent article. In the meantime, have fun with your photography.
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