New digital camera? Know how, where you can use it
Digital cameras were one of the hot gifts these holidays — the first one for some people, an upgrade for others. Cell-phone cameras are everywhere too, and sites like Flickr and Buzznet — not to mention photoblogs — make it easy for anyone to share the zillions of photos they're taking.
With all these cameras snapping around us, I started to wonder about the laws regarding using them. Where can you shoot? What can you shoot?
A blogger I know shot a picture in an office building. One of the tenants had boxes of medical records sitting around in an unlocked office, visible from the hall. He published a picture of the boxes, which started a little brouhaha: He didn't have permission from the building's landlord, someone said, so he wasn't allowed to take or publish the photos.
That turns out not to be the case.
What I discovered is that a lot of people have ideas — often very clear ones — of what is legal and what isn't, based on anything from common sense to wishful thinking to "I always heard…"
Trouble is, they aren't always right. If you've got a digital camera and like to shoot in public, it pays to know the real deal.
So I went looking for it. I checked with the Reporters Committee for Freedom of the Press and found its Photographers' Guide to Privacy.
The Missouri Bar has a terrific Journalists' Right of Privacy Primer by attorney Mark Sableman.
Bert P. Krages, an attorney in Portland, Ore., and author of the Legal Handbook for Photographers, has a short but excellent PDF document called The Photographer's Right.
I also had e-mail conversations with both Mssrs. Sableman and Krages (who were both careful to point out that they were only speaking in general terms, and not offering legal advice).
Finally, I got some background from the American Law Institute's A Concise Restatement of Torts on the Harvard Law website.
Of course, I'm not a lawyer; in this case I'm a researcher. But lemme tell you: All these sources jibed, which I take to be a good sign. Just don't take this as legal advice; it's one columnist's researched understanding of the law.
If you can see it, you can shoot it
Let's get the easy stuff out of the way. Aside from sensitive government buildings (e.g., military bases), if you're on public property you can photograph anything you like, including private property. There are some limits — using a zoom lens to shoot someone who has a reasonable expectation of privacy isn't covered — but no one can come charging out of a business and tell you not to take photos of the building, period.
Further, they cannot demand your camera or your digital media or film. Well, they can demand it, but you are under no obligation to give it to them. In fact, only an officer of the law or court can take it from you, and then only with a court order. And if they try or threaten you? They can be charged with theft or coercion, and you may even have civil recourse. Cool. (For details, see "The Photographer's Right.")
It gets better.
You can take photos any place that's open to the public, whether or not it's private property. A mall, for example, is open to the public. So are most office buildings (at least the lobbies). You don't need permission; if you have permission to enter, you have permission to shoot.
In fact, there are very few limits to what you're allowed to photograph. Separately, there are few limits to what you're allowed to publish. And the fact that they're separate issues — shooting and publishing — is important. We'll get to that in a moment.
You can take any photo that does not intrude upon or invade the privacy of a person, if that person has a reasonable expectation of privacy. Someone walking in a mall or on the street? Fair game. Someone standing in a corner, looking at his new Prozac prescription? No. Using a long lens to shoot someone in an apartment? No.
Note that the limits have nothing to do with where you are when you take the shots; it's all about the subject's expectation of privacy. You can be on private property (a mall or office-building lobby), or even be trespassing and still legally take pictures. Whether you can be someplace and whether you can take pictures are two completely separate issues.
Chances are you can publish it
Publishing photos has some different restraints, although they're civil, not criminal. Break one of these "rules" and, while you won't go to jail, you could find yourself on the short end of a lawsuit. (Although, according to the Reporters Committee for Freedom of the Press, "the subject's remedy usually will not include the ability to bar the publication of the picture.")
Revealing private facts about someone is a no-no. As the American Law Institute put it, "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."
Here the private property issue comes a bit more into play. Publishing a recognizable photo of someone at an AA meeting could be a problem, even if that meeting is open to the public. (An elected official, perhaps, but not of Joe Citizen.)
You also can find yourself in civil court if you publish a shot that places a person in a false light. That might be more of an issue with the caption than with the photo; running a shot of the mayor and his daughter labeled "Mayor meets with porn star" could land you in hot water. (Assuming his daughter isn't a porn star.)
Finally, you can't use someone's likeness for a purely commercial purpose — using a photo of someone in an ad, for example. That isn't to say you can't publish a photo in a commercial environment, such as a newspaper or a blog that accepts ads. If the photo is being used in a news or artistic sense as opposed to a commercial one you're OK.
Risk factors
The fact that taking a photo and publishing it are separate things might go against some folks' common sense.
Let's say you're banned by the local mall for taking photos there, but you go back anyway and take more. Now you're trespassing. But unless the photos you take violate someone's expectation of privacy, your taking photos isn't illegal — only being there.
That said, if you're arrested and convicted, a judge might use the fact that you were taking photos to increase the penalty, but shooting on private property isn't a crime in and of itself. As one lawyer told me, "I don't see why the act of trespass would turn something that occurs during the trespass into a tort if it wasn't one already."
There are some other risks to taking and publishing 'problematic' photos. But, as you'll see, they're easy to avoid.
Trespassing is an obvious problem. If you're not supposed to be someplace — you see a sign or you're told by the property owner, for example — you can get arrested. Sure, you might be able to publish the photos you take, but Web access from jail is limited. (Trespassing is almost always a misdemeanor, by the way.)
You might be charged with your state's variation of intrusion — using technology (e.g., a long lens, hidden camera, or parabolic microphone) — to access a place where the subject has an expectation of privacy.
Beyond trespass, the major risks you run are civil, not criminal. You can lose an invasion of privacy lawsuit if your photographs reveal private facts about a person that are offensive and not newsworthy when the person had a reasonable expectation of privacy. Ditto if they place the person in a false light, or inappropriately use the specific person's image for commercial purposes, e.g., stating that the mayor endorses a product by publishing a photo of him using it.
All of this should be good news for amateur and professional shutterbugs. Carry your camera, shoot to your heart's content, and know your rights — and your risks.
Andrew Kantor is a technology writer, pundit, and know-it-all who covers technology for the Roanoke Times. He's also a former editor for PC Magazine and Internet World. Read more of his work at kantor.com. His column appears Fridays on USATODAY.com.
Usually I don't run two update columns so close together, but some things I've seen lately tell me I need to clarify what I wrote in December.
Back then, I wrote a column on photographer's rights, in which I explained where you were allowed to shoot pictures and what you were allowed to do with them. I was glad to see people were reading and spreading it.
Since then, I've seen an incredible amount of misinformation bandied about, and I've had a lot of questions posted on my blog that tell me people aren't getting the message. Worse, I've read accounts of photographers being harassed for perfectly legal behavior by people whose ignorance of the law ought to get them in trouble.
The most notable was the story of Neftaly Cruz, a senior at Penn State who on July 19 was not only harassed but taken into custody by Philadelphia police for obstructing an investigation. How did he do this? By taking pictures of the cops while standing on a public street.
Cruz's actions were absolutely and undoubtedly legal, and not surprisingly he was released without being charged with anything.
It's not just cops who need reeducation classes. Last week I received a note from a reader:
"Today I was stopped by a security guard with the North County Transit District in Solana Beach, California, and prevented from taking photos of a great new train station they have," he wrote. "The guard said they don't allow it since 9/11."
Note to security guard: Just because you or your boss "don't allow" something doesn't mean it's not legal. I can post a sign on my lawn, "Hopping on one foot in front of this house is prohibited," but I'll have a tough time enforcing it.
Stories like these all have something in common. Invariably, it seems, the guards or cops either invoke non-existent laws (e.g., "It's illegal to shoot any building on 3rd Street"), or they use the all-encompassing "security."
Well guess what: Neither "security" nor "9/11" are magic words that will cause everyone to follow your every unjustifiable instruction. Say either as often or as loud as you want. It doesn't let you take away someone's rights.
Keeping it simple
The law in the United States of America is pretty simple. You are allowed to photograph anything with the following exceptions:
• Certain military installations or operations.
• People who have a reasonable expectation of privacy. That is, people who are some place that's not easily visible to the general public, e.g., if you shoot through someone's window with a telephoto lens.
That's it.
You can shoot pictures of children; your rights don't change because of their age or where they are, as long as they're visible from a place that's open to the public. (So no sneaking into schools or climbing fences.)
Video taping has some more gray areas because of copyright issues, but in general the same rules apply. If anyone can see it, you can shoot it.
And yes, you can shoot on private property if it's open to the public. That includes malls, retails stores, Starbucks, banks, and office-building lobbies. If you're asked to stop and refuse, you run the risk of being charged with trespassing, but your pictures are yours. No one can legally take your camera or your memory card without a court order.
You can also shoot in subways and at airports. Check your local laws about the subway, but in New York, Washington, and San Francisco it's perfectly legal. Airport security is regulated by the Transportation Security Administration, and it's quite clear: Photography is A-OK at any commercial airport in the U.S. as long as you're in an area open to the public.
Don't let anyone tell you otherwise.
Restrictions
There are a few more restrictions on publishing photos or video, though, as mentioned back in December.
You can't show private facts — things a reasonable person wouldn't want made public — unless those facts were revealed publicly. So no long-lens shots of your neighbors' odd habits.
You also can't show someone in a negative false light by, for example, using Photoshop tricks or a nasty, untrue caption.
And you can't put someone else's likeness to commercial use without their permission. This is usually mentioned in terms of celebrities, but it applies to making money from anyone's likeness.
For example, if you shoot individual kids playing in a school football game, you can't try to sell those shots to the parents; the kids have a right to the use of their likeness. You can sell photos of the game in general, though, and any shots where what's happening ("A player celebrates a goal") is more important than who's doing it ("Star running back John Doe takes a momentary rest").
Sound like a gray area? It is if you're planning to sell the pictures, but not if you're simply displaying them. And if you're using them for news purposes, all bets are off — you can pretty much publish whatever you want if it happens in public view.
The other gray area is copyrighted material. Even if it's in public, you can't sell pictures of copyrighted work — a piece of art, for example. But if the art is part of a scene you can probably get away with it.
All this in mind, it's almost always a good idea to get permission where you can and to be polite and friendly with anyone you deal with. Like good urban legends, people are absolutely sure they know the law about photography, and they're absolutely wrong.
If you want to know more, I've got a PDF on my site with all this spelled out, and you shouldn't miss Bert Krages's "The Photographer's Right." Print 'em and carry 'em.
Andrew Kantor is a technology writer, pundit, and know-it-all who covers technology for the Roanoke Times. He's also a former editor for PC Magazine and Internet World. Read more of his work at kantor.com. His column appears Fridays on USATODAY.com.
| Posted 8/11/2006 10:12 AM ET | |
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