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The Photographer’s Right
Bert P. Krages II, Attorney at Law

About this Guide
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.

* 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.

* 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.

* 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.

http://www.krages.com/phoright.htm
 

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New York Times
June 29, 2007

City May Seek Permit and Insurance for Many Kinds of Public Photography

By RAY RIVERA

Some tourists, amateur photographers, even would-be filmmakers hoping to make it big on YouTube could soon be forced to obtain a city permit and $1 million in liability insurance before taking pictures or filming on city property, including sidewalks.

New rules being considered by the Mayor’s Office of Film, Theater and Broadcasting would require any group of two or more people who want to use a camera in a single public location for more than a half hour to get a city permit and insurance.

The same requirements would apply to any group of five or more people who plan to use a tripod in a public location for more than 10 minutes, including the time it takes to set up the equipment.

Julianne Cho, assistant commissioner of the film office, said the rules were not intended to apply to families on vacation or amateur filmmakers or photographers.

Nevertheless, the New York Civil Liberties Union says the proposed rules, as strictly interpreted, could have that effect. The group also warns that the rules set the stage for selective and perhaps discriminatory enforcement by police.

“These rules will apply to a huge range of casual photography and filming, including tourists taking snapshots and people making short videos for YouTube,” said Christopher Dunn, the group’s associate legal director.

Mr. Dunn suggested that the city deliberately kept the language vague, and that as a result police would have broad discretion in enforcing the rules. In a letter sent to the film office this week, Mr. Dunn said the proposed rules would potentially apply to tourists in places like Times Square, Rockefeller Center or ground zero, “where people routinely congregate for more than half an hour and photograph or film.”

The rule could also apply to people waiting in line to enter the Empire State Building or other tourist attractions.

The rules define a “single site” as any area within 100 feet of where filming begins. Under the rules, the two or more people would not actually have to be filming, but could simply be holding an ordinary camera and talking to each other.

The rules are intended to set standards for professional filmmakers and photographers, said Ms. Cho, assistant commissioner of the film office, but the language of the draft makes no such distinction.

“While the permitting scheme does not distinguish between commercial and other types of filming, we anticipate that these rules will have minimal, if any, impact on tourists and recreational photographers, including those that use tripods,” Ms. Cho said in an e-mail response to questions.

Mr. Dunn said that the civil liberties union asked repeatedly for such a distinction in negotiations on the rules but that city officials refused, ostensibly to avoid creating loopholes that could be exploited by professional filmmakers and photographers.

City officials would not confirm that yesterday. But Mark W. Muschenheim, a lawyer with the city’s law department, which helped draft the rules, said, “There are few instances, if any, where the casual tourist would be affected.”

The film office held a public hearing on the proposed rules yesterday, but no one attended. The only written comments the department received were from the civil liberties group, Ms. Cho said.

Ms. Cho said the office expected to publish a final version of the rules at the end of July. They would go into effect a month later.

The permits would be free and applications could be obtained online, Ms. Cho said. The draft rules say the office could take up to 30 days to issue a permit, but Ms. Cho said she expected that most would be issued within 24 hours.

Mr. Dunn says that in addition to the rules being overreaching, they would also create enforcement problems.

“Your everyday person out there with a camcorder is never going to know about the rules,” Mr. Dunn said. “It completely opens the door to discriminatory enforcement of the permit requirements, and that is of enormous concern to us because the people who are going to get pointed out are the people who have dark skin or who are shooting in certain locations.”

The rules were promulgated as a result of just such a case, Mr. Dunn said.

In May 2005, Rakesh Sharma, an Indian documentary filmmaker, was using a hand-held video camera in Midtown Manhattan when he was detained for several hours and questioned by police.

During his detention, Mr. Sharma was told he was required to have a permit to film on city property. According to a lawsuit, Mr. Sharma sought information about how permits were granted and who was required to have one but found there were no written guidelines. Nonetheless, the film office told him he was required to have a permit, but when he applied, the office refused to grant him one and would not give him a written explanation of its refusal.

As part of a settlement reached in April, the film office agreed to establish written rules for issuing permits. Mr. Sharma could not be reached for comment yesterday.

Mr. Dunn said most of the new rules were reasonable. Notably, someone using a hand-held video camera, as Mr. Sharma was doing, would no longer have to get a permit.
 

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Security guards are private employees maybe some are public but they are NOT police officers and in most states are not even required to have any completed High School paperwork...let alone any real qualifications.

So, when you are walking down the sidewalk taking photos of whatever you want...and some rent-a-idiot come up on you (dumb thing in itself as there are numerous people this would make very nervous) yelling how they and their managers feel you have no right to take photos of their building...tell them to get it in writing in compliance with local/state and federal law. (this is the point where they radio for help)

eventually someone will grow some nuts and threaten you...now I myself am not a small guy, but as soon as someone calls me a terrorist I open up with...

"listen you little pussy, while you where sucking on mommy's tittie I was on a warship bombing Al Qaida and Taliban in Afghanistan serving my nation as a man carrying a gun and trained by professionals, if you wanna call me a terrorist...fine, but be sure you know what you are getting yourself into"

This is the point where they realize they're boss is full of shit and that they now understand the real world...I don't feel bad for them because I too was once a security guard.



all in all...tell them to go to hell, the police won't arrest you unless you are breaking laws (even trespassing is a citiation, nothing higher unless you broken and entered.) turning your camera over...DONT DO IT...tell them to request a search warrant from the local authorities (which will laugh because most wanna fight crime not babysit these twits).

:)
 

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Is there any such document for rights in Canada? I was photographing the filming of The Incredible Hulk last week, from outside the barricades set up on the middle of a street. They were doing their best to shield people from photographing with the use of umbrellas. I wondered after if I am allowed to post photos of this filming in a public space.. I am assuming I can. But would be nice to read a Canadian document.
 

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Discussion Starter #14
Is there any such document for rights in Canada? I was photographing the filming of The Incredible Hulk last week, from outside the barricades set up on the middle of a street. They were doing their best to shield people from photographing with the use of umbrellas. I wondered after if I am allowed to post photos of this filming in a public space.. I am assuming I can. But would be nice to read a Canadian document.
I highly doubt there would be any legal ramifications if you did. What if the people in the street were, say, protesters rather than actors. Would anyone seriously object to you posting pictures of the protest? That it's a movie being filmed shouldn't make a difference.
 

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I'm assuming that as well.... if it is in the public domain, I see no reason why
I could not post photos.... and I also understand their desire to block the photos.
Does anyone have a similar document for rights of photographers in Canada to this most excellent one that has been posted for the US? I would be grateful if anyone knows of such a thing!! :)
 

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Is this the right thread to ask about contracts with clients?

I haven't sold any photos before and need advice from you pros out there. I was just approached by a very large company building a very large building and they really like one of my construction photos posted on the internet. They would like to use it in a printed piece and are asking for usage rights and how much money I want for it.

So I need samples of usage contracts, if anyone has any, and going rates. There's some possibility this might lead to commissioned work, which would probably involve exclusive rights. Basically, I don't want to blow this opportunity and want to conduct business in a professional manner, so would like to see samples of contracts or listen to any advice anyone might want to pass along.

If there is already another thread addressing the business of photography, or good web sources, can you point it out to me?
 
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