Photographers spend a good bit of time, money, and energy on craft and their equipment. This same focus, however, rarely extends to the investment of time necessary to understand their legal rights and obligations. Why? Investigating legal matters can often be less exciting than watching paint dry, eating plain yogurt, or listening to a State of the Union speech! It is far more engaging to have a raucous debate regarding the resolution of the Nikon D800 vs. the Canon 5D MKIII, zoom into the first full size RAW samples from the D4, or dig into the details of some other photography minutia! Well, at least for some…
It is important for you to take some time to understand the legal aspects of photography, however, since if you are engaged in the field for any appreciable length of time (particularly in the area of photojournalism), you will eventually encounter a potential legal situation. The purpose of this article is to offer some tips and guidelines that may help you better understand and deal with common issues related to your rights. All of my comments are strictly from the perspective of United States law. Since I am not a lawyer, I cannot offer legal advice (at least not legally!). Should you find yourself in a situation that calls for legal advice, attempt to find a reputable attorney (preferably recommended from a fellow photographer or organization such as the ASMP) that routinely deals with such issues.
Table of Contents
1) Lack of Understanding Galore
The main concern is the amount of misunderstanding regarding these issues. This applies equally to photographers, those they take pictures of, police officers and others that enforce the laws, and those that manage content, such as newspapers, magazines, and websites. Even those managing photo contests may not have the necessary depth of knowledge. This can produce quite a bit of confusion, confrontations, and unnecessary strife. 9/11 only aggravated this situation, with some in law enforcement becoming increasingly suspicious of those with professional camera equipment.
2) What Can You Photograph While on Public Land?
Just about anything and anyone, and you don’t need permission. If you are standing on a public sidewalk, and spy Madonna walking into Starbucks, you are free to take her photo. If you shopping in LA, and observe the police busting Alec Baldwin for impersonating an actor, you are free to photograph Baldwin and the police arresting him, assuming you are doing so from public property. If you encounter an accident scene, there are no restrictions to your taking photos of the scene, the people involved, the EMTs, and police officers.
The only areas that are off limits are military installations, TSA security checkpoints, and power generation facilities. For obvious security reasons, we don’t want to make it too easy for terrorists to observe some of the details of these facilities. And you do not have the right to photograph someone in an area in which they have a reasonable expectation of privacy, such as their home, medical facilities, etc. If you take photos of people in such situations with your 200-400mm zoom lens, be prepared to be accused of violating their privacy.
You don’t have the right to plop your tripod anywhere you feel like in public. In areas, the authorities have the right to restrict your use of tripods or other types of rigs, not so much to interfere with your rights to photograph the area, but rather to ensure that you do not create a safety hazard. Most cities and public parks, such as the National Parks Service in Washington, D.C. , have published guidelines regarding the use of tripods. If you are shooting for commercial purposes, you may be required to obtain a permit and pay a fee. But if you are simply using a DSLR without a tripod, you likely have no restrictions.
3) What Can You Photograph While on Private Property?
All businesses and public buildings are considered private property. Concert halls, sports stadiums, theaters, etc. usually have some restrictions on photography. As such, you need to understand the policies of each facility you enter. And don’t assume that because the IRS building in Washington, D.C. is part of our federal government, and you are a US citizen, you can simply stroll through the aisles of each floor with your DSLR and fill up your CF or SD card. You can try, but don’t call me after the fact!
Most mall security guards are not going to stop you from taking a family photo in front of a mall’s fountain or the 20 foot inflatable Godzilla, but if you walk into Victoria’s Secret and start photographing the merchandise and displays, expect to be warned about their policy of not taking photos and escorted out the store by the police if you persist!
4) What Can I Publish?
Just about anything you photograph that you photographed in a public area, apart from your zooming into buildings or facilities, as mentioned previously, in which people have the right to expect privacy. This is perhaps one of the most difficult issues for people to accept. I suspect if you polled a thousand people, the vast majority of them would get this wrong. It doesn’t “feel right” that someone can take a picture of some mom and her son or daughter in a public park and then publish it in a newspaper, magazine, or website. And yet, it is perfectly legal. Celebrities and politicians are another matter entirely. Since they live much of their lives in the public eye, and often owe their fame and fortunes are related to such exposure, there are few restrictions relative to photographing them. Some of the best paid photographers are paparazzi, because public simply can’t get enough photos of their favorite celebrities. Photos of a celebrity couple’s new baby can be hundreds of thousands, and perhaps even millions. Of course, some of the celebrities have wised-up – they are taking photos of their newborns and selling them directly to the grocery store tabloids for prices ranging from $3M to $11m, and cutting out the paparazzi altogether!
5) Can I Sell My Photos?
It depends on who you are selling the photo to and for what purpose. If you are selling the photo you captured, of the beautiful young woman gazing into the sunset on the steps of the Lincoln Memorial, to an advertiser looking for a model for their new fragrance named, “Freedom”, you are going to have a problem. This is considered a “commercial” use of the woman’s image, and thus she is entitled to the compensation. She may be open to a financial arrangement, but you need to check with her first and obtain her agreement before the photo can be used.
If you are taking a photo of an Occupy Wall Street crowd or a Tea Party rally, you have identifiable people in the photos, and you wish to sell them to Time magazine, you do not need to get the permission of those in the photos. Time may ask for a model release, however, if the photos have only one or two subjects. But this would be more for paranoia rather than strict legal requirements.
If Time magazine is doing a story on you, and showcasing some of the beautiful senior photos you have taken, they will likely ask for a model release form indicating that the people in your photos have agreed for you to use their photos in such a capacity.
Suppose you want to publish, as a “work of art”, the photo of the Washington Ballet trio you came across against the beautiful backdrop of the Tidal Basin cherry trees (on public land) during the National Cherry Blossom Festival? It is your right to do so. This applies to any photos you take of anyone in public. As long as you are not selling them for commercial purposes (e.g. used for advertising a product or service in a brochure, magazine ad, television commercial, etc.), you are free to sell such images. This too is one of the legal issues most people struggle with, since it may seem “unfair”. And yet it is the law.
Each state may have its own restrictions regarding photography taken in state parks. It is highly un-likely, however, that any state authority will take you to court should you capture and sell that once-in-a-lifetime photo of the majestic moose you encountered while hiking on vacation. It would simply be bad for tourism. If anything, they may ask you to sell them the right to them to put your photo on the cover of their “Come to Alaska” brochure!
6) Potential Sources of Trouble?
Police that are not used to dealing with significant volumes of people. Some in law enforcement are not provided with sufficient training in this area, particularly those in smaller towns or rural areas. They may not necessarily have bad intentions, but there have been quite a few incidents when police mistakenly told photographers that they did not have a right to photograph either the police or other people in public settings.
Police in more urban areas in high stress situations. In the middle of a confrontation, riot, or other stressful situation, police may momentarily forget the finer points of their training relative to the rights of photographers. Understandable perhaps, but it is still not legal for them to restrict your rights to take their photos and/or the scene.
Security guards. If some in law enforcement are not familiar with your photography rights, there is a strong likelihood that those in the security field, that has a high turnover rate, will have even less training.
Those managing photography contests, festivals, and other public-oriented events. One might expect those working for such groups to understand the laws, but I have personally encountered director level personnel in major cities, in charge of photography contests and events, that clearly did not understand the rights of photographers on public lands.
Individuals and groups you may come in contact with on public property. This may be the most confrontational group of those listed. As mentioned earlier, the vast people would likely not understand that you can legally take their photo in public, and then sell it as a form of “artistic expression” on your website. And most likely believe that they have the right not to have their photo taken.
Other photographers. Indeed, in the last two weeks, I encountered a professional photographer that thought I could not publish a photo taken of public entertainers, on public grounds, during one of our nation’s largest and oldest festivals, during one of the busiest days of the festival. While the photographer had indeed organized the photo shoot, they were conducting it on public grounds during a major event. In believing that they had some exclusivity to the subjects or the area, they erred on a variety of fronts (but thanks for the inspiration for this article, BTW!). And if a prominent professional can be so wrong, I have little doubt that there are plenty others in the ranks that are also misinformed.
7) How Do I Handle Confrontations With Police?
First and foremost – always stay calm and be respectful. Shouting, “I know my rights, buddy, and I can take as many high res photos of you and the rest of the police state as I want!!!” is likely not going to help in a tense situation. You are welcome to give it a whirl, but I won’t be answering any of your calls to bail you out!
Remember that the police have a job to do. The vast majority of them are good and decent people, with many being former veterans. Despite the Dunking Donuts types of characterizations, each police officer may eventually be called at some point to put their lives on the line for us. As such, always show them the respect they deserve, even when they may not understand issues pertaining to your rights.
That said, you don’t have to, nor should you, surrender your legal rights, should a law enforcement officer mistakenly prevent you from exercising your rights under the law. You should know our rights and always be confident in stating so.
8) Can the Police Confiscate My Equipment?
No, unless you are breaking the laws or restrictions I referenced above. If they attempt to take your camera, you should, in a calm manner, ask them to inform you of the specific law or statute involved. They need a court order to seize your equipment. They “should” know this, but you may have to remind them. Again, how confident and rational you behave will likely dictate the outcome of a tense situation. Another reason to know your rights before you need to recite them to others that either don’t know or have temporarily forgotten them in the heat of the moment.
9) Can the Police Force Me to Delete My Photos?
No. Even if you are in Victoria’s Secret as outlined before and acting strange. The most they can do is ask you to leave, and arrest you if you refuse to stop taking photographs in a private facility that does not allow photography. They cannot ask you to turn over your camera’s memory card either.
10) What to Do If My Rights Are About to Get Trampled On?
Attempt to stop it before it happens. Always carry a notebook and pen while out taking photos, and make sure it is easily accessible. But whatever you do, don’t reach inside your jacket quickly to retrieve it during a stressful situation! If a police officer, mall cop, or other security professional attempts to detain you unnecessarily, began asking questions regarding their name, supervisor, department, reason for your detention and/or confiscation of your equipment, the specific law they believe you are breaking, etc. Make sure that he/she understands that you are going to take notes so that you clearly capture his/her responses. Some security guards have been known to offer rather vague responses such as “security concerns,” when asked what law they are citing, but that doesn’t pass the sniff test. They are obligated to inform you the specific statute they believe you are violating.
Nothing (short of a 200 lumen flashlight aimed straight into their eyes!) gives people more reason to pause, as your hand beginning to calmly commit their answers to paper. Again, I believe that your ability to work through such situations will likely be a function of how calm and confident you appear. If you don’t believe me, watch the “Princess Bride” once again. Westley, confined to a bed because he is temporarily paralyzed and able to do nothing more than deliver an extremely confident sounding speech, convinces Prince Humperdink to lay down his sword and surrender:
If you know your rights, you will indeed have that same confidence during a stressful situation! In most cases, your calm demeanor and understanding of the law will most likely prevail, and prevent any further escalation.
Here is another video on knowing your rights as a photographer:
11) Ok – That Didn’t Work. What’s Next?
If, despite your best efforts to remain calm, avoid an escalation, and educate those involved, your rights are violated, you have legal recourse. That could include anything from approaching a newspaper, news network, or other outlet to run a story, filing charges, initiating a lawsuit, or some combination thereof. You would have to, with guidance from legal counsel, understand your options in detail, the costs involved, estimates of any settlement, the probabilities of the various outcomes, and your willingness to undertake any and all actions associated with them. Only you can make the final determination of how much time, energy, and money you wish to expend to resolve the issue to your satisfaction.
Since 9/11, those in various aspects of law enforcement have become much more attuned to security threats. Unfortunately, they have sometimes turned their attention to those carrying professional camera equipment. Education regarding the rights of photographers can be spotty at best, and perhaps forgotten in stressful situations. Thus your ability to defuse a confrontation may rest in your your knowledge of your rights, skillful and confident communication of them to others, and using good judgment. Bert Krages has published an excellent summary of the rights of photographers.
I suggest printing a copy, laminating it, and storing it in your camera backpack. Keep a few extra plain paper copies with you in case you need to provide one to a police officer or others involved in a potential confrontation. The simple act of handing someone a printed copy of your rights alone may help avoid a potential confrontation. If you are a member of ASMP, print out a copy of their legal section covering their legal FAQs, and review them on occasion. There are other books from Krage and others, such as Nancy E. Wolff, that cover the legal rights and specific case law regarding photography in much more detail. At all times know your rights. And should you still find yourself embroiled in a legal situation, ensure that you contact an attorney that regularly deals in these matters.
If you have experienced any legal situations that may benefit others, please feel free to share them in the comments section below.