Basic Legal Issues in Photography

[ebc123]

I have a pretty good idea about legal issues regarding photographing people (a real quagmire in itself) but I am confused about photographing landscapes, nature, etc.

My intention is to eventually use some of the photos for commercial gain. At least I'd like to have the possibility of it.

I figure about 95% of what I want to photograph in this regard I cannot do from a public road, etc. I figure maybe 2% of that 95% I could reasonable get permission to shoot. For instance, try approaching some property owner you don't know. Most of them don't want to open the door, let alone give you permission to shoot. Also half the time it's extremely difficult or for all practical purposes impossible to know who the owner is.

If it's a public park or any public property, you can probably forget that too. They almost all prohibit commercial gain photography. Even if obtaining permission was a practical route (although I'm sure it's a lot like asking the property owner as described above,) this takes board and supervisor meetings, etc. before you'd get approval. Who has that kind of time and effort?

So am I to believe all these photographs published in books, sold as stock photography, etc are from photographer's obtaining permission for the property owners or park commissions? This seems VERY difficult to believe. Can anyone cue me in what goes on in this reagard? Thank you for any information.

 

[KmH]

I have a pretty good idea about legal issues regarding photographing people (a real quagmire in itself) but I am confused about photographing landscapes, nature, etc.

My intention is to eventually use some of the photos for commercial gain. At least I'd like to have the possibility of it.

I figure about 95% of what I want to photograph in this regard I cannot do from a public road, etc. I figure maybe 2% of that 95% I could reasonable get permission to shoot. For instance, try approaching some property owner you don't know. Most of them don't want to open the door, let alone give you permission to shoot. Also half the time it's extremely difficult or for all practical purposes impossible to know who the owner is.

If it's a public park or any public property, you can probably forget that too. They almost all prohibit commercial gain photography. It's not prohibited in the US. If you are wanting to photograph clients, setting up light stands and reflectors you may need to get a permit. Even if obtaining permission was a practical route (although I'm sure it's a lot like asking the property owner as described above,) this takes board and supervisor meetings, etc. before you'd get approval. Nah!Who has that kind of time and effort?

So am I to believe all these photographs published in books, sold as stock photography, etc are from photographer's obtaining permission for the property owners or park commissions? Probably not. This seems VERY difficult to believe. Can anyone cue me in what goes on in this reagard? A consultation with a qualified attorney can clue you in. Thank you for any information.

Being this is an International forum adding your approximate location to your profile would be helpful.

I will proceed under the assumption you are somewhere here in the USA. I am not an attorney, but do study legal issues relating to photography.

1. Commercial gain has little or nothing to do with it, but is a very common urban legend perpetuated here on the Internet.

2. You can make images of just about anything from public lands and sell those images to anyone that will buy them. No other paperwork or permissions are required. However, some of those buyers may want to use the images for promoting their business. If the image(s) they have bought from you contain people, or trademarks of any kind they may want a property or a model release for their legal protection.

The real key that triggers the need for a release of any kind is how the image will be used.

Stock photography houses have their requirements listed on their web sites. Here is a link to an example discussing requirements for model releases: Articles - iStockphoto Photography Standards: Model Releases | iStockphoto.com

I strongly suggest you undertake a more organized approach to becoming acquainted with the base legal issues.

3. Any property owner has the right to prohibit your presense on their property, for any reason, if they are aware you are there. I can tell you that here in central Iowa I have no trouble securing permission from property owners to shoot landscape and nature images from their land. I usually present a business card. Also land ownership is public information here in the US and finding out who owns a piece of land is pretty easy if you know where to look for the information.

TPF has some other basic info: http://www.thephotoforum.com/forum/articles-interest/162431-photography-law.html

 

[ebc123]

Thank you very much for this information! I agree that I need to take a more organized approach. However, I really did know where to begin. My limited experience has not be very encouraging. This has given me a good place to re-start. Again thanks very much to all who have contributed so far!

 

[ebc123]

By the way, I live in Pennsylvania, USA. I will add this to my profile.

 

[ebc123]

I have also found this information if it is of any help to anyone else.

Photography, the Law and Photographers Rights - Bob Atkins Photography

Bert P. Krages Attorney at Law Photographer's Rights Page

 

[ebc123]

I have to add that I find it ridiculous to suggest that you can go up to a total stranger and ask them to sign a photo model release and a significant percent of the time they'll comply. Most people today are extremely conscious of their privacy and well they should be. Same with asking people to go on their private property. Maybe you succeed on this one more often than not but still... Get someone to sign an open-ended model release to a total stranger? Please. Unless I can find that alternate universe you're living in.









Please.

 

[JG_Coleman]

If it's a public park or any public property, you can probably forget that too. They almost all prohibit commercial gain photography. Even if obtaining permission was a practical route (although I'm sure it's a lot like asking the property owner as described above,) this takes board and supervisor meetings, etc. before you'd get approval. Who has that kind of time and effort?

As far as public parks in the US, that's just not true. I travel to state parks all over Connecticut (and occasionally other states) and sell my photography from those locations. I've never obtained a single release or any form of written permission. They are public parks... if you can take nature photographs there and they are good enough to sell, more power to ya! There's nothing illegal about that.

There are some stipulations at public parks, of course. First of all, if photography is expressly forbidden in a given area, then it is obviously not alright to take pictures there. I can't think of any instances off the top of my head where this has been the case, though.

When I was doing photography in the Everglades, I familiarized myself with some of the guidelines there. As with most US public parks, state or national, photography for any purpose, personal or commercial, is only a problem if:

-the photographer requires access to areas of the park not ordinarily open to the public
-the photographer requires use of a crew and/or excessive amounts of equipment
-the shoot entails hauling in excessive amounts of props
-the photographer is in any way damaging the lands or harassing the wildlife (this could include endangered plants, as well... so watch where you step!)

It is always a good idea to check ahead of time in areas that you suspect may have additional stipulations, but for the most part the basic rules above cover almost all US public parks, whether they are local, state, or national.

 

[c.cloudwalker]

There are quite a few books on the subject. Just do a google and pick one to get you started.

Just as an example: The Law (in Plain English) For Photographers | PhotographyBLOG

This is not an endorsement of this book. I have never looked at it myself. I use lawyers. If you ever decide to consult one, make sure he is versed in art/intellectual property law. Your family type lawyer is most probably not.

 

[KmH]

I have to add that I find it ridiculous to suggest that you can go up to a total stranger and ask them to sign a photo model release and a significant percent of the time they'll comply. Most people today are extremely conscious of their privacy and well they should be. Same with asking people to go on their private property. Maybe you succeed on this one more often than not but still... Get someone to sign an open-ended model release to a total stranger? Please. Unless I can find that alternate universe you're living in.
Please.

It's not a suggestion, it happens every day.

You need to know that there is a right way of approaching people to get them to sign a release though.

Most pople today are clueless what their privacy rights actually are, and don't hesitate to give their rights away on a regular basis by using social networking web sites and partisipating in personal information grabs companies disguise as 'contests'.

 

[crimbfighter]

**Disclaimer: This information applies mostly to Wisconsin law and may vary slightly by state**

I can tell you, at least in Wisconsin, how these situations are handled from a law enforcement perspective. As a cop, I deal with similar situations often. If you want the Cliffs Notes, jump to the end. Otherwise, if you're bored, read on.

First and foremost, it is ALWAYS best to obtain permission from the land owner of private property before setting foot on their land, especially if you are going to be utilizing their land for something other than "passing through". As far as getting release, I would tend to believe KmH on this, as I don't have any experience in getting people to sign releases for photos, but I do have lots of experience in getting people to sign statements and the implications thereof. It's amazingly easy to get cooperation, because it's all in how you approach it and sell it. Be honest about it, appear professional and I bet you will get more cooperation than you think. If you just walk up to the door and say, "can I take pictures on your land, and here's a form I need you to sign so you can't sue me." You probably won't get many people to cooperate. But if you explain why you're taking the pictures, where they may appear in print, why you can only get the shot from their land, ect. you may be pleasantly surprised how often people will agree.

I would also suggest you explain the release to them rather than just asking them to read it. Most people don't want to read the whole thing while you're standing there and it's human nature to feel uncomfortable standing in front of a complete stranger, possibly leading to a rash "no" decision. Think about the last time you signed a cell phone contract. Did you really read, or want to read every word. Granted some people might, but it's rare.

Next, even on private property, in order for trespassing laws to be enforced, one of two things has to be met. Either one, the property is posted no trespassing in accordance with their local or state law, or two, the land owner or person with a vested interest in the property, such as a relative, tenant or employee, has told you you are not allowed on the property. If neither of those two are met, then all they can do is ask you to leave or have police escort you off the property and tell you not to return. Then, if you do return, you can be arrested/cited, ect.

I know I didn't really address the issue of civil liability with the photos, but the two are actually closely linked. A large part of civil liability lays in what is called "reasonable expectation of privacy". If you are gaining something from a photo (ie, money, leverage, ect) which was obtained by violating someones reasonable expectation of privacy w/o consent, then they will likely have grounds to seek damages in court. Even though they don't own the mountain, they could reasonably articulate you violated their expectation of privacy to get that specific picture of it, and are profiting as a direct result. As a rule of thumb, people DO have a reasonable expectation of privacy against unauthorized entry on to their property. However, they would likely have to articulate the property was marked no trespassing or you had already been told, or it was reasonable for you to have known it was private property, ect. Which leads back to the above listed requirements for trespassing. How do you know if it's private property? Use common sense. Is it maintained? Are there structures on it? Is it fenced off or marked?

Whew, and I'm just getting started! :chatty:

Now, those rules only apply if you are intending to stand on private property. There is a lot of case law out there that says peering on to or over private property is ok if you're doing so from public property. Unless someone has erected a barrier of some sort with the intention of keeping people from viewing their property they do not have an expectation of privacy on their property if viewed from public lands. If you're standing on the sidewalk and you want to take a picture of someones house, and you're not climbing a fence to do it, you're fine. Likewise, if you are trying to take a picture of the mountain on the other side of someones house, again, no problem. Now if you're peering into the window with a telephoto lens, then there's a problem. A similar rule applies to law enforcement. We can't use equipment that modifies the human senses (ie night vision, thermals, sound amplification equipment) to peer inside someones home w/o first obtaining a search warrant. Now, when explaining this I'm envisioning you standing on someone's remote farm field, as opposed to 6 feet from their bedroom window, so keep that in mind, too. That could have a lot of affect on the court of public opinion. **Also, the case law regarding what is a reasonable expectation of privacy is mostly federal case law, which means it applies to all states. However, there may be more restrictive laws in your municipality, so as always, consult your local law enforcement or municipal authority**

So, I hope that helps you, if only a little, to understand the complexities of privacy and why it helps to have that release!

Cliffs Notes:
If you're knowingly standing on private property, obtain permission to be there and get the signed release to protect yourself from civil liability.