|
 |
The Photographer's Rights - USA
By Bert P. Krages II Attorney at Law | Wisdom and Inspiration |
Apr 11, 2010
|
|
The Photographer's Rights here refers to the American laws only (see below for links to other countries)
Confrontations that impair the constitutional right to make images are becoming more common. To fight the abuse of your right to free expression, you need to know your rights to take photographs and the remedies available if your rights are infringed.
The General Rule
The general rule in the United States is that anyone may take photographs of
whatever they want when they are in a public place or places where they have permission to take
photographs. Absent a specific legal prohibition such as a statute or ordinance, you are legally
entitled to take photographs. Examples of places that are traditionally considered public are
streets, sidewalks, and public parks. Property owners may legally prohibit photography on their
premises but have no right to prohibit others from photographing their property from other
locations. Whether you need permission from property owners to take photographs while on their
premises depends on the circumstances. In most places, you may reasonably assume that taking
photographs is allowed and that you do not need explicit permission. However, this is a judgment
call and you should request permission when the circumstances suggest that the owner is likely to
object. In any case, when a property owner tells you not to take photographs while on the premises,
you are legally obligated to honor the request.
Some Exceptions to the Rule
There are some exceptions to the general rule. A significant one is that
commanders of military installations can prohibit photographs of specific areas when they deem it
necessary to protect national security. The U.S. Department of Energy can also prohibit photography
of designated nuclear facilities although the publicly visible areas of nuclear facilities are
usually not designated as such. Members of the public have a very limited scope of privacy rights
when they are in public places. Basically, anyone can be photographed without their consent except
when they have secluded themselves in places where they have a reasonable expectation of privacy
such as dressing rooms, restrooms, medical facilities, and inside their homes.
Permissible Subjects
Despite misconceptions to the contrary, the following subjects can almost
always be photographed lawfully from public places: accident and fire scenes children celebrities
bridges and other infrastructure residential and commercial buildings industrial facilities and
public utilities transportation facilities (e.g., airports) Superfund sites criminal activities law
enforcement officers
Who Is Likely to Violate Your Rights
Most confrontations are started by security guards and
employees of organizations who fear photography. The most common reason given is security but often
such persons have no articulated reason. Security is rarely a legitimate reason for restricting
photography. Taking a photograph is not a terrorist act nor can a business legitimately assert that
taking a photograph of a subject in public view infringes on its trade secrets. On occasion, law
enforcement officers may object to photography but most understand that people have the right to
take photographs and do not interfere with photographers. They do have the right to keep you away
from areas where you may impede their activities or endanger safety. However, they do not have the
legal right to prohibit you from taking photographs from other locations.
They Have Limited Rights to Bother, Question, or Detain You
Although anyone has the right to
approach a person in a public place and ask questions, persistent and unwanted conduct done without
a legitimate purpose is a crime in many states if it causes serious annoyance. You are under no
obligation to explain the purpose of your photography nor do you have to disclose your identity
except in states that require it upon request by a law enforcement officer. If the conduct goes
beyond mere questioning, all states have laws that make coercion and harassment criminal offenses.
The specific elements vary among the states but in general it is unlawful for anyone to instill a
fear that they may injure you, damage or take your property, or falsely accuse you of a crime just
because you are taking photographs. Private parties have very limited rights to detain you against
your will and may be subject to criminal and civil charges should they attempt to do so. Although
the laws in most states authorize citizen's arrests, such authority is very narrow. In general,
citizen’s arrests can be made only for felonies or crimes committed in the person’s presence.
Failure to abide by these requirements usually means that the person is liable for a tort such as
false imprisonment.
They Have No Right to Confiscate Your Film
Sometimes agents acting for entities such as owners of
industrial plants and shopping malls may ask you to hand over your film. Absent a court order,
private parties have no right to confiscate your film. Taking your film directly or indirectly by
threatening to use force or call a law enforcement agency can constitute criminal offenses such as
theft and coercion. It can likewise constitute a civil tort such as conversion. Law enforcement
officers may have the authority to seize film when making an arrest but otherwise must obtain a
court order.
Your Legal Remedies If Harassed
If someone has threatened, intimidated, or detained you because you
were taking photographs, they may be liable for crimes such as kidnapping, coercion, and theft. In
such cases, you should report them to the police. You may also have civil remedies against such
persons and their employers. The torts for which you may be entitled to compensation include
assault, conversion, false imprisonment, and violation of your constitutional rights.
Other Remedies If Harassed
If you are disinclined to take legal action, there are still things you
can do that contribute to protecting the right to take photographs.
(1) Call the local newspaper and see if they are interested in running a story. Many newspapers
feel that civil liberties are worthy of serious coverage.
(2) Write to or call the supervisor of the person involved, or the legal or public relations
department of the entity, and complain about the event.
(3) Make the event publicly known on an Internet forum that deals with photography or civil
rights issues.
How to Handle Confrontations
Most confrontations can be defused by being courteous and respectful.
If the party becomes pushy, combative, or unreasonably hostile, consider calling the police. Above
all, use good judgment and don’t allow an event to escalate into violence. In the event you are
threatened with detention or asked to surrender your film, asking the following questions can help
ensure that you will have the evidence to enforce your legal rights: 1. What is the person’s
name? 2. Who is their employer? 3. Are you free to leave? If not, how do they intend to stop
you if you decide to leave? What legal basis do they assert for the detention? 4. Likewise, if
they demand your film, what legal basis do they assert for the confiscation?
Disclaimer
This is a general education guide about the right to take photographs and is necessarily
limited in scope. For more information about the laws that affect photography, I refer you to the
second edition of my book, Legal Handbook for Photographers (Amherst Media, 2006). This guide is not
intended to be legal advice nor does it create an attorney client relationship. Readers should seek
the advice of a competent attorney when they need legal advice regarding a specific situation.
For More Information
United States Photography Law
More information about photography law in the United States can be found in the Legal Handbook for Photographers-The Rights and Liabilities of Making Images.
Photography Law in Other Countries
I am occasionally asked about documents similar to The Photographer's Rights
that cover the laws of other countries that relate to photography. The
ones I know about are listed below. If you are aware of others, I would
appreciate hearing about them
UK Photographers Rights
NSW Australia Street Photography Legal Issues
Photographer Rights in Portugal
published by: Bert P. Krages II Attorney at Law 6665 S.W. Hampton Street, Suite 200 Portland, Oregon 97223
krages.com
� copyright 2006 Bert P. Krages II (updated)
Your Rights and Remedies When Stopped or Confronted for Photography
Let us know if you found this article useful, and tell us what kinds of articles you'd like to see in upcoming issues. Send your comments and ideas to the editor.
© Copyright 2010 by PHOTOWORKSHOP.COM
Top of Page
Last Updated: Aug 11th, 2010 - 13:36:44
|
|
|
|
|
Wisdom and Inspiration: Additional Articles
|
|
|
|
|
|
|
|
