Candid "legal" questions!

[Garbz]

Sure you will. It has already been done in well known civil cases in the US, a famous one in Canada, and I am sure, Australia as well since the same law applies.

This hasn't been tried on photography in Australia as far as I know, but it's unlikely you will. The outcome of the tort of trespass should it end up in court will likely end up with requiring to pay some form of compensation. Think about that for one second. You're on my land taking photographs of my stuff after I said no you can't (key here is after I've said so, anything before hand is fair game). In what world would you ever hope to retain copyright and/or make a profit of something taken while trespassing once you know a trespass case will be brought against you? The many of the fundamental trespass cases involve your right to make your own money from your land, i.e. someone digging under your property for minerals. Even without damaging or interfering with the land the cases all have been found for the property owner (except in Australia where you don't own anything of possible value underneath the ground on your property).

 

[skieur]

Sure you will. It has already been done in well known civil cases in the US, a famous one in Canada, and I am sure, Australia as well since the same law applies.

This hasn't been tried on photography in Australia as far as I know, but it's unlikely you will. The outcome of the tort of trespass should it end up in court will likely end up with requiring to pay some form of compensation. Think about that for one second. You're on my land taking photographs of my stuff after I said no you can't (key here is after I've said so, anything before hand is fair game). In what world would you ever hope to retain copyright and/or make a profit of something taken while trespassing once you know a trespass case will be brought against you? The many of the fundamental trespass cases involve your right to make your own money from your land, i.e. someone digging under your property for minerals. Even without damaging or interfering with the land the cases all have been found for the property owner (except in Australia where you don't own anything of possible value underneath the ground on your property).

There are 2 basic legal issues that have won the case for photographers under the laws of several western countries:

1. trespassing may be illegal, BUT taking photos is NOT illegal with the few exceptions of top secret installations, courts, washrooms, changerooms etc. (There are famous paparazi shots taken while trespassing that have been published in magazines throughout the world.)
2. The photographer is the first owner of copyright and that does not change if the photographer was trespassing as the law is written.

skieur

 

[unpopular]

While photos obtained illegally (i.e. trespassing) may be owned by the copyright holder, property obtained by illegal means may be ceased by court order. Because in US law intellectual property is treated similar to real property, I would imagine that this can be the case.

If an image of, say, a celebrity having tea time with their puppy was obtained by criminal trespassing, it may be possible for the image's rights to be ceased. I am not 100% sure if that is accurate, but I don't see why it shouldn't be.

However, in any case the photographer owns the image until the court decides otherwise.

 

[skieur]

While photos obtained illegally (i.e. trespassing) may be owned by the copyright holder, property obtained by illegal means may be ceased by court order. Because in US law intellectual property is treated similar to real property, I would imagine that this can be the case.

If an image of, say, a celebrity having tea time with their puppy was obtained by criminal trespassing, it may be possible for the image's rights to be ceased. I am not 100% sure if that is accurate, but I don't see why it shouldn't be.

However, in any case the photographer owns the image until the court decides otherwise.

That was the position of the plaintiff who lost the case in New York. The judge ruled that the photos were not obtained by illegal means because taking pictures is not illegal. In fact taking photos is protected by the American Constitution. There is NO such thing as criminal trespass when it is not accompanied by a crime and taking pictures IS NOT A CRIME and NOT ILLEGAL. That is the law in the US.

skieur

 

[manaheim]

Search "legal" on this forum and you'll get about 12 million threads on this topic.

 

[skieur]

Search "legal" on this forum and you'll get about 12 million threads on this topic.

Non sequitur!

 

[manaheim]

 

[unpopular]

At common law a trespass was not criminal unless it was accomplished by violence or breached the peace. Some modern statutes make any unlawful entry onto another's property a crime. When the trespass involves violence or injury to a person or property, it is always considered criminal, and penalties may be increased for more serious or malicious acts. Criminal intent may have to be proved to convict under some statutes, but in some states trespass is a criminal offense regardless of the defendant's intent.
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Criminal Trespass legal definition of Criminal Trespass. Criminal Trespass synonyms by the Free Online Law Dictionary.

eat it skieur.
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[vfotog]

While photos obtained illegally (i.e. trespassing) may be owned by the copyright holder, property obtained by illegal means may be ceased by court order. Because in US law intellectual property is treated similar to real property, I would imagine that this can be the case.

If an image of, say, a celebrity having tea time with their puppy was obtained by criminal trespassing, it may be possible for the image's rights to be ceased. I am not 100% sure if that is accurate, but I don't see why it shouldn't be.

However, in any case the photographer owns the image until the court decides otherwise.

That was the position of the plaintiff who lost the case in New York. The judge ruled that the photos were not obtained by illegal means because taking pictures is not illegal. In fact taking photos is protected by the American Constitution. There is NO such thing as criminal trespass when it is not accompanied by a crime and taking pictures IS NOT A CRIME and NOT ILLEGAL. That is the law in the US.

skieur

this makes no sense whatsoever and is just plain wrong.

 

[unpopular]

exactly. and in what jurisdiction was that case in, anyway? If it was in New York State Court, it has no precedent elsewhere. Even if was a lower federal court decision, it can only be used as persuasive argument - albeit strongly persuasive - in any other jurisdictions.

In other words, what some court decided in New York has limited, if any, weight here in Montana. For such a legal expert, Skieur seems to have little understanding of how the US courts actually work.

 

[unpopular]

On second thought, this issue couldn't be heard in federal court if the photographer was not demanded to cease the property, and because the definition of criminal trespassing is not a constitutional issue. I doubt very much that the damages would be high enough to be heard in Federal Court (I think $250K to qualify, but I'm not sure).

If the photographer lost, and had demanded that the property be ceased it could be heard in federal court as a first amendment violation. But since the property owner lost the issue of trespass is not a federal issue and would be heard in federal court; not being a federal issue, it must remain within the state court system to decide.

 

[vfotog]

I think what's confusing me most is, stores are publicly open yet are on private property

there shouldn't be any confusion. like most businesses, the public is allowed to enter so the mall can conduct the business of selling things to their customers, but it's not owned by the government/public. It's private property, just like a bank or restaurant or whatever.

 

[unpopular]

Think of it this way: Let's say I put a sign outside my house, inviting everyone to come inside for a party. One guest tries to convert me to their religion, another insists I can't be healthy without eating meat, and another is explaining, in graphic and explicit detail, the birds and the bees to my four year old child, after snapping a few shots of himself wearing my wife's lingerie.

Can the guests assert their freedom of speech has been violated once kicked out of the party, by virtue alone of the fact that they will indiscriminately invited inside even without condition? If they refused to leave, would the police be unable to compel their leaving?

Granted, stores offer a service and theirfor are held to a higher standard, I could demand a disabled, Black veteran to leave on the grounds that "their kind" isn't welcome while a store cannot. But when it comes to freedom of speech, the same rules apply and free speech is not protected in a private setting.... unless...

The California State Supreme court has ruled that because places like shopping malls, and apparently Wal-Mart parking lots have replaced the traditional city square venue, some free speech activities are permitted. Some other states have similar liberal views. See Pruneyard Shopping Center v. Robins - Wikipedia, the free encyclopedia

The idea that the shopping mall and other public areas have replaced the public forum date back to Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, which the suprme court ruled that a landowner could not "limit the use of that property by members of the public in a manner that would not be permissible were the property owned by a municipality" provided that it substitutes the "normal municipal business district. (see Law of the Mall), however this ruling was later overturned in PruneYard Shopping Center v. Robins, which still applies in California jurisdiction due to California state constitutional law, despite that this very case overturned earlier federal standing on the matter.

The issue of if you can photograph in wal-mart and shopping malls however may be another issue, and I am not sure how this may apply.

 

[dogleg]

Can someone clear this up for me please. I am being sued by a person who claims personal injury as a result of a minor car accident involving my wife . This person claims she can't do any housework ,cooking etc. due to her injury. I saw this woman at a public function where she appeared to be perfectly fine and I took a few pictures of her both in the room and later on the street outside. I'm not sure if she was aware that she was the subject. I gave these photos to my insurance company. They said they couldn't legally use them because they broke the rules of her "reasonable expectation of privacy''. I think this is nonsense. Any idea where the law stands on this issue? I haven't talked to a lawyer yet.

 

[unpopular]

just get to the spam already.