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    Photography and the Law

    Note: The following article is not intended to replace legal counsel. It is meant only to be a general, common-sense guide. Should you find yourself needing legal advice from an incident involving your photography, it is recommended you seek it in your local jurisdiction.
    -TPF Ed.


    Photography and the Law

    submitted by TPF member skieur

    Generalizations

    The law is very similar in many western democracies because the concepts of freedom tend to be similar. The right to take photos and have them published is covered in Constitutions and Charters of Rights as the right to self-expression through photography and the right to enjoyment of property: namely your photo equipment.

    I don’t pretend to be a lawyer, but my work in photography has required that I be familiar with the various laws. I have also not covered all of the exceptions to some generalizations since many of them are based on common sense and there may be new laws coming in to some countries or locales. Be aware also that new photo situations are always occurring that make the law subject to interpretation by a judge.

    Taking Photos in A Public Place

    A
    public place is defined in laws as a place to which the general public has access. It does NOT mean public property. A shopping centre, library, museum, park, is still a public place although it may be private property.

    You can take photos of almost anything in a public place. Buildings may be copyrighted but that applies to their design and photography does not violate the copyright of a building. It is not against copyright to take a photo of any architectural work or piece of art or sculpture in a permanent public place. Copyright by legal definition applies to a creation in a permanent and substantial form, so light displays would not meet that requirement and therefore not be copyrightable.

    Street Photography of People

    It is the right of a photographer to take photos of any person in a public place. If the photo is used for “commercial” purposes, then a release is needed. “Commercial purposes” is defined as advertising, NOT any purpose for money.

    This means, for example, that a photo of a person taken in the street could be displayed in a gallery and sold as a piece of art without a release. Editorial use which is also allowed without a release is interpreted somewhat broadly. It is NOT for example limited to on the editorial page of a newspaper. An article on street photography in a photo magazine could be done without releases for the photos.

    Other laws and restrictions related to street photography:

    Assault

    In law, assault is more broadly interpreted than just touching someone or hitting them. Intimidating someone by sticking a camera in their face or blocking their movement on the sidewalk by taking a photo of them, could be legally interpreted as assault.


    Loitering

    Setting up a tripod and/or other photo equipment on a sidewalk might be considered loitering depending on location and the policeman involved.

    Right to Privacy

    Everyone is guaranteed a reasonable expectation to privacy. This means that photographing a victim of an accident or violence while he/she is being attended to by a medic would probably be considered a violation of his/her right to privacy despite being in a public place. On the other hand, photographing people doing normal street activities is legal.

    In Canada, however, a recent judgment states that a release is needed if the person is the main subject of the photograph which is later published. The photo can still be taken, but a release is necessary for publication. In Europe, this is true in some countries but not in others.

    Voyeurism

    Needless to say, taking photos in a bathroom, change room, up skirts, etc. is illegal and subject to criminal charges. This may extend to taking photos of someone within their own home from the street or another location but not necessarily to a back yard, depending on its location to public view.

    Prowling by Night

    On private property, this “peeping tom” law makes it illegal to loiter, and that is in addition to trespassing.

    Trespassing

    Generally speaking, if you are in a public place like a shopping centre, arena etc. and you are then told to leave and do not do so, you are then trespassing. If security guards on private property tell you that photography is forbidden and you continue to shoot, then you are trespassing, too. Your photos, however, are your property as well as equipment, and not subject to seizure without a warrant - in most locations.

    “No photography” signs may mean that you are trespassing as soon as you take a picture. Without such signage means that, until you are told otherwise, you can take any pictures you want.

    On private property, you are immediately trespassing in a number of situations. I will attempt to cover some of the most applicable. Where there are No Trespassing signs, fences, gardens, farms, cultivated land, small trees, closed gates, lawn etc. if you choose to ignore these blockades and photograph, you are trespassing.

    An open gate, a roadway that is not signed as private, a welcome sign or mat, a door with a bell, may all imply permission to enter.


    Celebrities

    In Europe particularly, there has been the issue that celebrities should be free from the bother of being photographed during normal activities in the community. The general law in some areas is that they can only be photographed if they are performing or in some public function.

    Secrets Act

    Taking pictures of a top secret location, document etc. is forbidden but NOT items such as bridges, government buildings, railways, harbours, air fields etc.

    Photography Permits

    More common in U.S. parks than in Canada, the purpose is to control large scale productions with perhaps a truck, lights, generator, photographic crew, technicians, etc. that can almost take over a park and prevent regular patrons from enjoying it.

    As long as you are not too noticeable, you will likely avoid being confronted by a park authority person about your picture taking.

    Ownership of copyright: employee or employer?

    The misconception is that if you take a photo during work hours then your employer owns the copyright to the photo.

    The legal issue is the nature of your job. If part of your job description involves taking photos then the employer owns the copyright to any photos you take. On the other hand, if you are a traveling sales representative and you take a spectacular news photo while out on the road, then you own the copyright to that photo, whether you were being paid by your employer at the time or not.

    Smart employers or those who are more familiar with the law, tend to pay employees extra for anything that they do, beyond their normal job description particularly when photos, or video are involved. That gives them the legal rights to the product or media production.

    Photography Contracts

    A frequent complaint on photo websites is that of an amateur who gave a photo to a friend or associate and found it later in a magazine or newspaper without any credit or remuneration as the original photographer.

    Without any evidence to the contrary, many judges would say that, if you give away one of your photographs, you are also giving away the rights to that photo. The person you give it to can either give it to someone else, or sell it for publication, etc.

    Without a contract stating otherwise, the person who commissions a portrait can legally claim to own the rights to the photo since, like above, he becomes an employer hiring an employee to take photos.

    A photography contract must not only indicate how much is being paid, but what the payment is for, and what rights the photographer retains to his/her photos.

    If Confronted

    DO:

    Be aware of your rights: You do NOT have to show anyone the photo, erase it, hand over your camera or equipment, or allow any search to take place.

    Politely ask what the problem is. You may respectfully need to point out that taking photos is not illegal of your particular subject in your location, or indirectly ask him/her what law has been violated.

    Realize that, if asked you must leave private property or stop taking photos. That alternative is the possibility of a trespassing charge.

    Try to avoid the prospect of any of the “catch-all charges” such as public mischief or a disorderly conduct charge, by not creating a scene or complaining about what a security guard or police person cannot do.

    Realize that if you have already taken the photos you want, then it does not matter who is right or wrong, it is time to leave gracefully.

    Consider shooting from a different location, if you have the appropriate lenses and the shot is sufficiently important.

    Politely ask the full name and details of the person confronting you.

    DO NOT:

    Delete the photo, since it implies the other person has the authority to demand it and it can make things worse for the next photographer being encountered by that person.

    Hand over your equipment, since no one has the right to seize it, unless you are arrested by police.

    Apologize for taking photos, since that is not illegal or wrong.

    Be aggressive or defensive. Either one implies that you are trying to justify your actions despite knowing that they were wrong.

    Argue over irrelevant matters. Whether there is a sign or not, if you are on private property and they have told you that photos are not allowed, then you must stop taking photos or leave, to avoid a trespassing charge.

    Show any identification because it is not required to security guards at all, or to the police, unless you are arrested.

    Answer unnecessary questions which will put you on the defensive. “Do you usually go around, taking photos of ……?” Redirect things back to the matter at hand. What is illegal about taking pictures?






    Summary

    This is a general guide only. I hope that it will help you to realize as well, the individual nature of legal situations in the area of photography when you are reading about them in the news or on the net. It may be, for example, that taking the photos was not illegal, but it was the use of the photos afterward that lead to the law suit. It may also be that if you read these types of articles carefully that the photographer was not arrested for taking photos, but rather for trespassing, assault, disturbing the peace, loitering, etc.

    When reading the laws directly, look for clear wording such as “must” and “required”, as well as for wording that is open to interpretation and definition, such as “fair use”. Words may be clearly defined at the beginning of the law or left somewhat open to interpretation.

    When reading about particular judgments, they tend to be meaningful only if they set a precedent, and that is only true if they represent a legal interpretation of some section of the law and have been upheld on appeal. A judgment related to photographing celebrities for example, may not extend to photographing the general public.

    For more specific references I would suggest Canadian Copyright Law by Lesley Ellen Harris (who has also published on American copyright law, as well), and Media Law Handbook by Stuart Robertson. It is useful to look at the original laws which are available as well, sometimes as an appendix in the back of better books on the law.
    American law on photography tends to be very similar to Canadian law, partially due to cross border intellectual rights and photojournalism.

    One of the best references that I have seen, so far on the Internet is:
    http://ambientlight.ca/laws.php#You_are_guaranteed_the_right_to_take_phot ographs



  2. #2
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    this is interesting

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    Good stuff for sure. One question for now: Are international laws so similar that they warrant such a broad brush?
    What's in your sippy cup?

    So we're banned from the dog park... I guess it's ok to bark and it's ok to hump but both at the same time freaks people out.


    My stuff:
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    Some L,
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    No reference was made to "international" laws in the article, Rekd!

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    Quote Originally Posted by skieur View Post
    No reference was made to "international" laws in the article, Rekd!
    You're in Canada, skieur! I'm in the US!

    (Or did I mis-interpret the definition of "international"? )

    Here, let me re-phrase it so you'll understand...

    Do those laws reflect US law, or just Canada law? (You know, i n t e r n a t i o n a l)
    Last edited by Rekd; 03-12-2011 at 09:45 PM. Reason: Simplified for reading and comprehension...
    What's in your sippy cup?

    So we're banned from the dog park... I guess it's ok to bark and it's ok to hump but both at the same time freaks people out.


    My stuff:
    A low-light rapid shooter with hi-def video, a sniper with Zeiss optics, a couple old school 35s.

    Some L,
    a fast Nifty Fifty, a kit IS, some slow EFs and two crappy Qs.

    __□ _ □_
    [l_,[____],
    l---L - OlllllllO-
    ( )_) ( )_)--)_)


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    Let me re-phrase:

    READ THE ARTICLE!

    Any serious photographer who shoots in both Canada and the U.S. realizes that basic rights to take photos are similar.

    Any local bilaws are legally questionable, if they violate basic US Constitutional or Canadian Charter rights depending on the location.

    skieur
    Last edited by skieur; 03-13-2011 at 05:58 PM.

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    great post, very interesting.

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    Do Not:

    Show any identification because it is not required to security guards at all, or to the police, unless you are arrested.
    I would suggest if a LEO asks you for an ID you show it to them. If you don't, you risk being arrested. At least in the US. (Yes, you CAN be arrested and detained for up to 3 days without being charged with anything. )
    What's in your sippy cup?

    So we're banned from the dog park... I guess it's ok to bark and it's ok to hump but both at the same time freaks people out.


    My stuff:
    A low-light rapid shooter with hi-def video, a sniper with Zeiss optics, a couple old school 35s.

    Some L,
    a fast Nifty Fifty, a kit IS, some slow EFs and two crappy Qs.

    __□ _ □_
    [l_,[____],
    l---L - OlllllllO-
    ( )_) ( )_)--)_)


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    Quote Originally Posted by Rekd View Post
    Do Not:

    Show any identification because it is not required to security guards at all, or to the police, unless you are arrested.
    I would suggest if a LEO asks you for an ID you show it to them. If you don't, you risk being arrested. At least in the US. (Yes, you CAN be arrested and detained for up to 3 days without being charged with anything. )
    Very true, it is usually more helpful to be cooperative any ways.
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    Tresspassing:

    An open gate, a roadway that is not signed as private, a welcome sign or mat, a door with a bell, may all imply permission to enter.
    If you walk up to a home with a welcome mat or doorbell and assume that mat or doorbell is permission to enter and take pictures you risk being arrested. Or shot.

    At least in the US.
    What's in your sippy cup?

    So we're banned from the dog park... I guess it's ok to bark and it's ok to hump but both at the same time freaks people out.


    My stuff:
    A low-light rapid shooter with hi-def video, a sniper with Zeiss optics, a couple old school 35s.

    Some L,
    a fast Nifty Fifty, a kit IS, some slow EFs and two crappy Qs.

    __□ _ □_
    [l_,[____],
    l---L - OlllllllO-
    ( )_) ( )_)--)_)


  11. #11
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    Quote Originally Posted by Rekd View Post
    Tresspassing:

    An open gate, a roadway that is not signed as private, a welcome sign or mat, a door with a bell, may all imply permission to enter.
    If you walk up to a home with a welcome mat or doorbell and assume that mat or doorbell is permission to enter and take pictures you risk being arrested. Or shot.

    At least in the US.
    Funny here in Utah if you are inside your home and to catch a person so much as putting a finger inside your house unwelcomed you have the right to shoot them I know if someone came threw my door and raised something up like you would a camera I would shoot. I would say about 30% of this state carries concealed and they are working on passing a law at the moment to make it so Utah residents don't have to have a CFP to carry concealed, which will push it to about 75-80% carrying concealed. I don't think it is right are the going to give us CFP holders all our money back as well as finger print cards etc of course not!

    Sorry little off topic...
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    Permission to enter the property NOT the house. Shooting canvassers, political candidates, even door to door salespeople is frowned upon, even if they enter your property and go up to the front door and ring the bell.

    skieur

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    Quote Originally Posted by skieur View Post
    Permission to enter the property NOT the house. Shooting canvassers, political candidates, even door to door salespeople is frowned upon, even if they enter your property and go up to the front door and ring the bell.

    skieur
    OIC. So when you said...

    a door with a bell, may all imply permission to enter.
    you didn't really mean to imply...

    a door with a bell, may all imply permission to enter.
    Gotcha! Thanks!
    What's in your sippy cup?

    So we're banned from the dog park... I guess it's ok to bark and it's ok to hump but both at the same time freaks people out.


    My stuff:
    A low-light rapid shooter with hi-def video, a sniper with Zeiss optics, a couple old school 35s.

    Some L,
    a fast Nifty Fifty, a kit IS, some slow EFs and two crappy Qs.

    __□ _ □_
    [l_,[____],
    l---L - OlllllllO-
    ( )_) ( )_)--)_)


  14. #14
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    An American judge indicated that a bell on the door implied permission to enter the property in order to ring the doorbell.

    skieur

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    ROR!



    Ok.
    What's in your sippy cup?

    So we're banned from the dog park... I guess it's ok to bark and it's ok to hump but both at the same time freaks people out.


    My stuff:
    A low-light rapid shooter with hi-def video, a sniper with Zeiss optics, a couple old school 35s.

    Some L,
    a fast Nifty Fifty, a kit IS, some slow EFs and two crappy Qs.

    __□ _ □_
    [l_,[____],
    l---L - OlllllllO-
    ( )_) ( )_)--)_)


 

 
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