legal rights of photographers.

by andrew kantor, may 2009. his disclaimer states, "i am not a lawyer. i have no had legal training. i am just a guy who did some research on this topic. don't consider this document as legal advice; it may be wrong. consult your own attorney if you have questions; this is just one person's understanding and overview." he listed his references on the last page of his pdf and here's another one from an actual lawyer, updated in 2006.

-----------------------

if anyone can see it, you can shoot it.

you can legally take pictures of anything that is visible to the general public (without special equipment -- eg., a telephoto lens), whether it or you are on public or private property.

that means you can legally take pictures of children, athletes, people on the street, beach bathers, buildings, cars, policemen, accident scenes, government officials, airplanes, airports, trains, and so on.

you can legally take pictures when you are on private property, if that property is open to the public (eg., a mall or office complex.)

you do not need permission to take pictures. what law says you can't take pictures?

all that said, there are two important caveats.

1. while there are few exceptions to what you can photograph, there are exceptions to what you can publish. (more later.)
2. although it is legal to take pictures while on private property, you could still be guilty of trespassing if the owner of that property tells you not to, or if he demands you to leave.

what you can't photograph.

• where photography has been prohibited by law. that's by law, not by private "no photography" signs. what's prohibited by law? photography of certain government facilities (usually of a military nature) -- you will be well aware of this prohibition if you encounter one. for example, it is apparently against the law to take photographs of bridges in the new york city area.
• things that require special equipment to see -- ie., they wouldn't be visible to the public. so using a telephoto lens* on a rooftop to shoot a woman on the fifth floor of an apartment building is a no-no. invasion of privacy. (technically, taking the picture isn't illegal, violating privacy is.

*note that using a telephoto to shoot pedestrians from a rooftop (or soccer plays on a field) is fine; they have no expectation of privacy.

all of that said, just because you can shoot something doesn't mean you can publish it.

what you can't publish.

let's get the easy stuff out of the way: when it comes to non-human subjects, the only things that you cannot publish are copyrighted images (more later) and potentially images that give away a secret (in which case you would have been someplace inaccessible to the public to get the shot -- ie., the vault holding coca-cola's secret formula, or a military base.)

when it comes to people, though, there are a few more rules. breaking one (or more) isn't against the law, but you could lose a civil suit for invasion of privacy or (in one case) libel.

in fact, publication of photos is all about three parts of privacy law -- private facts, falst light, and misappropriation. they tell you whether or not a photo can be published without opening yourself to a lawsuit -- regardless of how the photo was obtained. in other words, even if a photographer violates a subject's right to privacy, publishing the photos is not illegal.

from the photographer's guide to privacy:

even if a news organization arguable violates a subject's right to privacy, the subject's remedy usually will not include the ability to bar the publication of the picture (see CBS, inc. v. Davis, 113 S.Ct. 912.)

here are the questions to ask if you want to know whether it's all right to publish a photograph of someone.

did the subject of the photo have an expectation of privacy? it doesn't matter whether she was on public or private property; was she making a reasonable effort to avoid being seen?

if not, the picture is probably all right to publish -- meaning your risk of losing an invasion or privacy lawsuit is slim. but if you need to take any kind of extraordinary means to get the shot -- telephoto, hidden camera -- forget it.

but what if the person does have an expectation of privacy, whether she's in her bedroom or he's sitting on a park bench huddled over a medicine bottle? then there are some more questions...

is the picture embarrassing to a typical person? does it reveal private and non-newsworthy information that a reasonable person wouldn't want publicly known? sneaking into your ex-girlfriend's apartment and getting a shot of her in the bath -- that's a no-go. ditto for a shot of someone, say, taking AIDS medication.

the definition of private information is fairly specific.

from the american law institute:

one who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.
--Restatement (Second) of Torts, § 652D.

does it put the person in a false light? that is, is it published in such a way -- perhaps with a particular caption or a particular collection -- that is implies something untrue about the person? a web page of "my favorite drug addicts" that included a shot of your high school teacher taking an aspirin in the men's room could be considered libelous.

context is (almost) everything. again, from the photographer's guide to privacy:

a photograph or videotape by itself will rarely place a subject in false light. rather, the accompanying text, caption, or voice-over could be misleading and portray the person in a false context. however, an accurate depiction of a person in a publication the person finds offensive does not, in itself, state a false light claim.

misappropriation.

everyone has the right to the commercial use of his or her image. that means you can't sell a picture of, say, eli manning without his permission.

per the american law institute:

one who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy.

--Restatement (Second) of Torts, § 652C.

there's an important exception to all this: news value. you can take anyone's photo -- including eli manning's -- and put it in a newspaper, magazine, or web site in a news context (eg., "eli manning makes surprise shopping trip to smallville," or "quarterback john doe takes a drink before the start of the 3rd quarter.")

as the photographer's guide to privacy explains:

under these laws the use of a relevant picture to illustrate a newsworthy article will generally not lead to liability. the unauthorized use of a celebrity's picture is an advertisement often will.

but what if it's not in a news context? whether you're allowed to publish (without fear of lawsuit) comes down to this: is the value of the image based on the identity of the person pictured? if it's more what someone is doing rather than who they are, you're probably in the clear. for example, if you have a picture of a generic guy playing touch football on the beach, you can probably publish it -- but if it's a picture of dante culpepper playing on the beach, the picture is valuable because of him. and he owns the right to his image. this doesn't just apply to big-name celebrities. the local high-school quarterback, also owns the rights to his image.

that's why there are model releases. protecting the photographer by giving him permission to publish and sell those images (depending on wording of release.)

what about selling?

one of the most frequent questions i get is along these lines: i shoot my kids soccer games. can i sell the pictures on my web site? can i sell pictures of individual kids to their parents?

if you've got general action shots of a game, yes, you can publish and sell them on your web site. when it comes to individual shots, though, it's a different matter.

remember, people own the rights to their images. that means you can't sell a photo of "billy stevens, goalkeeper" without his permission -- at least not to the public. but you can sell it to him (or his parents) because the act of buying it from you indicates they agree to your profiting from it... at least from them.

you can also put them on a web site. you can't sell images of individuals (expect as mentioned) but you can show off your skills. just be careful -- if one of those players claims that his particular image is worth something, and that you are profiting from having that picture, you may have to take it down. but it's a tough argument to make if he's not a celebrity.

trademark and copyright.

some inanimate objects are protected by trademark or copyright law, and selling picture of them violate those laws.

one of the more famous of these is the Hollywood sign. you can shoot it and publish the image (the hollywood trust even has a "list of suggestions for safe, legal spots where you can go to get that perfect picture of the sign") but you can't sell it. ditto for some other private buildings, as well as things like hersey's kisses, crayloa crayons, lego bricks, las vegas hotels, etc.

remember, this only applies to selling images. so yes, you can publish a picture of your six year old drawing with a crayola crayon on your web site. don't forget about news value.

what people can do to you.

if you are on public property, you have the right to be left alone. people cannot badger you to stop taking photos, nor can they threaten you (physically or otherwise, and that includes threatening to call the police.)

private citizens, including security guards, do not have the right to confiscate your equipment or to require you to erase your memory cards (or film.) they do not have the right to threaten you in order to make you do so "voluntarily."

if you are on private property, the owner of that property (or his representative -- eg., a security guard) can make permission to be on that property contingent upon your compliance. in other words, "stop taking pictures and erase your memory card or i'm kicking you out."

failure to abide by this could make you guilty of trespassing, but the photos you take would probably still be legal.

what can a store owner or manager legally do?

• ask you to stop photographing. failure to stop could mean you're trespassing.
• ask you to leave. failure to leave, trespassing.
• ask you to erase your memory card as a condition to remaining. you can choose to erase it or leave the property; failure to do either, trespassing.
• ask you to stop shooting and leave. failure to comply, trespassing.

he or she can't demand you erase your memory card or turn over your equipment. that is called theft. he can't threaten you physically or by saying he'll call the police. that's coercion. he can't prevent you from leaving until you comply. that's kidnapping or false imprisonment.

law enforcement officials similarly cannot confiscate your equipment without a court order or if they are placing you under arrest. neither can they destroy your property -- and that includes deleting images or exposing film -- without a court's permission.

of course, they tend to have muscles and guns, which may make it hard to assert your rights. they also, however, have badge numbers and superiors.

what you can do.

know your rights. when someone says, "what gives you the right to take these pictures?"... "we're in a public place" or "i actually don't need permission."

always be polite. firm, but polite. tell the person you understand his concerns, but what you're doing is legal. if someone asks you not to take a photo of her or her kids and it's no big deal, don't. the more polite photographers people encounter the better it is for all of us. that doesn't mean back down whenever someone asks you not to shoot, but weigh the long-term cost of making a big deal about it.
stand firm with the police. if it's the police demanding that you destroy the pictures or turn over your equipment, say (politely) that you don't want to. if they press the point, ask what law you are violating, and under what authority he is asking you to do so. ask if you are under arrest. if you are not, remind him that he can't confiscate your property.

carry a voice recorder.* most digital models have enough storage to record for six-eight hours. if you get into a situation that might be, shall we say, dicey, start recording. if a cop claims you were being belligerent and you can produce a recording of just the opposite, you're in good shape. ditto for private citizens, i speak from experience.

*in 12 states -- CA, CT, FL, IL, MD, MA, MI, MT, NV, NH, PA, WA -- you need to have the consent of all parties in a conversation in order to record it. so recording device in plain view, or skip it.

get photo-recovery software. it allows you to recover deleted images from your memory cards. list of software available here.