Thursday, April 20, 2017

Your Rights As A Photographer

Last edited on April 20, 2017

I take a lot of photographs and I also publish a lot of them on the internet. As a hobbyist or professional photographer, it's a good idea to know and understand your basic rights before pushing the shutter-release button. It an even better idea to know and understand the local laws when taking photographs in the public arena.

Taking photographs in the public domain is your right
Lets us take photographs. It's our right.

This guidance is from the year 2003 and seems like the best advice out there in the post-9-11 world for photographers in the U.S.

Your Rights As A Photographer

About this Guide
Author: Bert P. Krages II. Attorney at Law
6665 S.W. Hampton Street, Suite 200
Portland, Oregon 97223
© 2003 Bert P. Krages II

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. For example, 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
  • 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 and arrests
  • 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 Review Your Images or Take Your Gear
Law enforcement officers do not have the right to view your images absent a warrant. They may have the authority to seize a camera or cell phone when making an arrest but still must obtain a warrant to search the contents.

Likewise, they do not have authority to make you delete images. Sometimes agents acting for entities such as owners of industrial plants and shopping malls may demand that you delete your images or give them your camera. Absent a court order, private parties have no right to do so.

Taking your camera or cell phone directly or 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.

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.

  1. 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.
  2. 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.
  3. 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 camera or cell phone? What legal basis do they assert for the confiscation?
This is a general education guide about the right to take photographs and is necessarily limited in scope. More information about the laws that affect photography can be found in the book, "Legal Handbook for Photographers" (Amherst Media). This guide is not intended to be legal advice nor does it create an attorney-client relationship.

Author - Bert P. Krages II. Attorney at Law
6665 S.W. Hampton Street, Suite 200
Portland, Oregon 97223
© 2003 Bert P. Krages II

Why Post About Photographer's Rights?

When I was a reporter for the local newspaper I had the opportunity to cover car crashes, fires, and other public spectacles. There were times, too many to count, where law enforcement officers (LEO) and agencies stopped me from covering a story until it was no longer a story.

I suspect the LEOs prevented me from covering some of these incidences on purpose, either because of who I was or who I represented. And yes, I could have forced the issue or called the agency's leadership but I never saw that as my job. There was a newspaper editor and publisher sitting between that violation of my rights and the First Amendment."Better to not rock that boat" was the message I got every time.

In the end, the respect I had for the local LEO evaporated quickly. Harsh? Actually, I see it as a well-deserved lack of respect. The U.S. Constitution isn't something to mess around with and the officers I dealt with felt they were out of reach of any repercussions. They were and still are.

Now I am a freelance writer and photographer. Understanding my rights, especially when my business interests or clients are concerned, is important. So I present these "old" rights to my readers and so I have a copy available when needed. If you noticed, there is a 2003 copyright place on this information so use the concepts here as just a guideline.

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Originally published on April 20, 2017.


Tim Bondy

Freelance Writer & Citizen Journalist
I am currently a proud citizen journalist, aka "enemy of the American People!"

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